Soundcloud, Copyright, Fair Use, Creative Commons, Mess
April 7
Been mulling over a couple of issues lately, relating to copyright and streaming of music. It started with this thing around December, when Soundcloud started to attract attention for their new copyright policy. If you don't remember, what happened is that Soundcloud installed some new music identifying software. The upshot of this is that if you are a copyright owner, and don't want people using your tracks, you can register on this software; then if Soundcloud detects the track somewhere on its database, it'll send out a takedown notice and hide the track until the uploader can prove they have the right to use it.
That's got some people up in arms - you might have had a notice yourself. DJ mixes are of course prime targets, as are mashups, re-edits, bootlegs, and good old fashioned file sharing. It's spawned a glut of articles, some by people involved with music, such as this nuanced effort at Wayneandwax, and others which look more at the theory, like this one from Techdirt.
I have some problems with these articles, and the arguments therein, which you'll see in a lot of different places. One is their automatic reversion to the cry of 'fair use'. (Sorry if this goes a touch dry for a minute). That Techdirt article starts with the words "The very point of fair use....". Now, what I haven't seen addressed anywhere, by anyone, is that 'Fair Use' is a concept unique to US law. There are similar things in other countries, but here in the UK for instance, the equivalent seems much more restrictive; you can only use a work for research, education or criticism. Anyone who uses Soundcloud will know that it's a German company with an international userbase. How do you start to unpick a situation where (say) a US user has uploaded something that uses a British artist's work onto a German website? What law should take precedence here?
It's reminiscent (in reverse) of the situation we had in the 80s and 90s with rock bootlegs. For a long time there were loopholes in copyright law, which meant you could sometimes (legally) get away with manufacturing/distributing/etc recordings; live recordings made by foreign artists maybe, or recordings made before a certain date. Record companies couldn't do anything about it.
Now, I'm gonna hold my hand up and say I don't know the first thing about the concept of 'fair use' in German copyright law. But I do know that it's overly reductive to just say 'wah wah wah fair use' - and anyone who does this is just wilfully ignoring the reality of the situation. It's clearly not that simple.
(Incidentally, why not stream the next Bass Music release while you're reading? Hm?)
The second main issue, is what IS fair use anyway, and should copyright owners be able to enforce it? Easier one, for me - I'm generally in favour of a creator having some sort of control over their work; I don't believe that just because you've made something available to the public, that you therefore surrender all rights over it. So the DJ mix thing - if you don't want your tunes to be used on a DJ mix, I think you should be able to say so. You might lose exposure, you might miss out on lots of new people being introduced to your stuff, you might be shooting yourself in the foot. But that should be your prerogative.
In fact, the DJ mix angle goes deeper; Wayneandwax argues that we should recognise the difference between something that's a direct replacement for a recording (piracy) and something that's been substantially changed (e.g. has the beginning and end obscured by other tracks). If you wanted a particular track, you wouldn't download a DJ mix. But then, for a lot of people, that's good enough - the average clubgoer doesn't need to hear a full beats intro and outro; they'd much rather hear it in the context of a mix, which for a long time explained the popularity of the mix CD. The mix CD has now, however, been rendered almost obsolete by the ease with which you can record and distribute your own mixes through soundcloud, mixcloud and so on.
That's great news for the fan - no need to spend 11.99 on something to listen to at the gym. Not so great for the artists, however - at one point compilations brought in up to 20% of my income. That's been wiped out entirely. I'm not going to argue that we should turn back the clock, more that these things are never universally positive (or negative). DJ mixes may present exposure for the featured artists, but in general I think most artists are well aware of how nebulous the concept of 'exposure' is, and would sooner take the cash!
It brings up another point too - that of commercial gain. This is one of the factors to be considered by judges when ruling on Fair Use, and I think it's fair to say that the vast majority of DJ mixes are produced with commercial gain in mind; the desire to get some DJ sets in the clubs. Which is fine, but it's made more complicated by the fact that in 2011, with the decline of sales (for various reasons), artists are exhorted to make their money instead by playing more live shows. This is already showing some unexpected side-effects - as DJs and producers start hustling for gigs, they discover that there's only a finite number of clubs and weekends, and for anyone who isn't flavour of the month, gigs are becoming harder, not easier, to come by. So this means that by using a producer's tracks in a DJ mix online, the bedroom DJ is putting themselves in competition with the artists they feature. What else are they to do though, if they want gigs? There aren't too many options, and realistically I can't see many producers actually choosing to block their tracks from DJ mixes (I certainly wouldn't). It comes down to what we want copyright to do though - and as money from sales tends towards zero, I wouldn't be surprised if some producers consider not making their tracks available at all, (beyond promotional clips on Youtube or streaming sites) in an attempt to recover a level of exclusivity that departed with the demise of the physical format.
Beyond the DJ mixes though, it starts getting harder to pull things apart - and this is where it gets really interesting. Mashups and re-edits get a lot of press for being one of the positive, creative aspects of web2.0 culture, and so they should. Take this recent moombahton effort from Smutlee, for instance:
It's basically a pulling together of two or three separate tunes, in a way that the original producers would never have done. This is obviously never going to appeal to someone who was looking for Booka Shade tracks; so it's certainly not depriving them of any cash. This type of edit has recently given birth to entire genres - I'm not sure how many fully original Moombahton tracks are out there, but they must be completely outnumbered by the mashups, edits and bootlegs (could it be the first genre made entirely from re-edits?).
But equally, something like this could never have been done without quality source material - it's dependent on a good, well recorded vocal (which cost somebody time and money to produce) and a catchy backing track (ditto). I'd venture, too, that the exposure from this track won't be an awful lot of use to Booka Shade either; I don't know how many fans of tasteful tech-house will be listening out to dancehall-inflected global bass music. So; Moombahton artist grabs large chunks of other people's tunes, uses them to launch a DJ career. Is that fair? Or should we be asking, is it unfair? Does the original artist actually lose out, and if not, does it matter?
It's like the 'downloading a car' argument again. You can take a loop and do something with it, without compromising the original work. It seems clear that in the case of a lot of Moombahton or decent mashups, this is a good thing - it sparks creativity, people making things just for the fun of it, or to get a laugh from their mates - giving rise to musical creations we wouldn't otherwise have seen, and if done well, showcasing the original track in a favourable light. Although it is currently illegal.
With regard to Soundcloud however, I don't think we can really complain that they appear to be just trying to abide by the law and not get sued by anyone along the way. Expecting them to share a certain value judgement - e.g 'the evil corporations vs the oppressed man on the street', (and then to risk breaking the law to uphold it) is surely naive; not to mention insulting to indie labels and smaller artists who rarely deserve the ire that's often focused on that broad term 'the industry', and who are often trying to offer new options to fans that the majors wouldn't consider. Soundcloud have made it clear that they'll try to act on the wishes of the copyright owner, and plenty of copyright owners don't seem too fussed either way. While we've had a couple of takedown notices here at BMB, we still have plenty of mashups and re-edits hosted on our Soundcloud account which don't appear to bother anyone (despite being technically illegal). So it's obviously not a default smackdown, it clearly depends on a number of factors, including the copyright holders intentions, and as mentioned, the vagaries of Soundcloud's file recognition software.
What they could sort out, however, is a degree of consistency. One blogger, Lowdjo, had a situation recently where he uploaded a mix full of 1970's Turkish tracks. Soundcloud sent him a takedown notice, not because he was infringing the rights of the original copyright holders, but because these tracks had been sampled recently by the likes of Gonjasufi and Gaslamp Killer, and now Lowdjo was infringing that copyright. When half the point of the mix was to show the heritage of the sound. Then to add even more confusion to the situation, he just added a different track at the start, reuploaded, and all was fine. You can read the whole story here. (Check out his other mixes too though, there's some great stuff there).
Wayneandwax has also been highlighting inconsistencies in chasing up certain tracks; for instance some people have received takedown notices regarding James Blake's 'Limit To Your Love' - but there are still dozens of remixes and bootlegs on SC. So it all looks pretty haphazard, and doesn't really inspire confidence in Soundcloud and the system they're using. The wording is also unhelpfully blunt, I'd argue.
So to come back around, rather than bashing Soundcloud for upholding (a cautious interpretation of) the law as it stands, perhaps we really need to think what we want the law to do, and argue for that instead. Obviously, we want some kind of setup where we can take or use small snippets of audio for artistic purposes; I deliberately haven't mentioned 'sampling' so far, because I think in 2011 we can all agree that within reason, it's perfectly valid. I ripped a bar of shakers from an old vinyl just this morning, and I would challenge the original artists to locate the sample, if they even recognise it. (Kevin Saunderson may have a slightly different take on sampling, however). But at least we do generally acknowledge that there's a grey area.
Equally, I think most producers are happy enough to accept that people are going to do mashups these days, and have no major truck with that. Many of them are poor, will get a couple of dozen plays on Soundcloud and be largely ignored. They're a compliment, if anything. It's good someone's listening. The few that are good will have been done by someone with actual talent - so they'd be making good mashups whether they used your track or someone else's. Again, there have been plenty done of my stuff; and in fact, I'm making all the individual stems of tracks released on the Bass Music label available, in the hope that people will do their own remixes and mashups. My point here, is that I think most producers are happy enough these days to allow a degree of leeway as to what happens to their tracks. So I'm not sure we necessarily need to be setting up this unhelpful dichotomy of 'the people vs. the corporates' when perhaps we can just be more proactive as creators and labels and sidestep the whole issue by looking at how our stuff is released.
Should we be looking at Creative Commons licenses?
The I.D. & Baobinga album 'Bass Music Sessions' was released last year under a CC license (I wrote in detail about the whole process, click here if you missed it) and offered with a 'pay what you want' option. One problem with CC stuff though, is that all the licenses essentially allow people to download and share the original copy for free. They get more permissive from there - different licenses allow people to change, mashup, redistribute, even sell versions of the original. (Click here for more details on which one does what). Which is a bit of a sticking point; at the very least, I imagine most producers will want to sell their tracks, even if they're then going to allow people to mash them up. A CC license doesn't actually stop you from selling a track as well, although whether sales will be as good if the track is freely available is something we probably don't need to debate.
So, from a modern, indie kind of producer's standpoint - could we simply use another type of CC license, which does not permit sharing, but does permit various uses once you've actually bought it? (OK come on, we all know that paid-for music will have largely evaporated into the cloud within five years, but humour us poor musician types for the moment). It would certainly clear things up, and stop these arguments about whether something constitutes 'fair use' and what fair use actually is anyway. "DJ Mixes are allowed; Mashups are not allowed" or whatever the copyright holder (producer or label) want to say. It would stop people blaming Soundcloud, the RIAA, or whatever other middleman we care to look at; we could point directly to the label or artist and blame them instead. I suppose you'd still need a system that looks like the one SC currently have installed though, to police the whole thing?
Is that something that would fit under the CC remit? (Genuine question there). And could producers and labels be persuaded to actually use something like that? It'd be bit of a faff, most people probably wouldn't want to bother if they could avoid it. But it would be pretty simple to integrate into the upload process of something like Soundcloud, kind of like they already do with CC licenses, just check the box you want...
This has been a bit of a long and rambling post, I'll admit. But I do think that it's kind of futile to blame the likes of Soundcloud for a) not wanting to get sued into oblivion and b) failing to crusade for a change/reinterpretation of American laws, when they're not even an American company. And if we wait for international legislative processes to sort out problems out for us, we could be here a long while, so perhaps we could just get a move on anyway? I think though, as a producer myself, I'd rather have a system that we can opt into, rather than one which defaults to a situation where anything is 'fair use' and it's up to to the artist to claim otherwise; the ramifications of this could be just as unwelcome as the current setup.
And if anyone's read this far and has any thoughts on the matter, I'd love to hear them!
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Posted by bassmusic
