They are too comfortably rooted in their traditional business model to even consider the thought that the 1911 copyright act needed a little refresher… 10 years ago!

I can understand why they feel threatened by the CC initiative, and saddened by the way they bash it. I’d be Afraid too if I were ASCAP.

Song gets played on radio, ASCAP and/or BMI tallies the number of plays, then sends appropriate royalties to artists collected from radio, TV, bars, etc…

A new model:

Song gets played on internet, ASCAP and/or BMI tallies the number of “plays” from a few big name websites, then sends appropriate royalties to artists collected from ISP’s.

the internet = one big vast radio

First: ASCAP (and other PRO’s, BMI and SEASAC) collect PERFORMANCE royalties. That is, royalties that are owed to a songwriter or composer (not performers), whenever anyone plays music on the radio, in a live venue, or in their business.

ALL radio stations have to pay performance royalties – even indie stations (I know many indie DJ’s, and I’ve seen the paperwork with my own eyes). Other people who pay performance royalties: shops which play CD’s, any business that has a jukebox, and any venue where live music is being played (regardless of whether they charge for that music).

In theory, you only need to pay these royalties if you play music represented by ASCAP (that includes bands covering ASCAP-represented songs). Unfortunately, it is near impossible to prove you don’t, so essentially you have to pay the PRO’s whether you play their music or not. But almost all commercial music is covered by one PRO or another, so it’s usually not terribly unfair.

But ASCAP and BMI have been overly aggressive about charging people as of late – even e.g. non-profit coffee shops who host free “open mic” nights where musicians only play their own music. In theory this would be copyfraud on ASCAP’s part, but usually venues like this shut down the music rather than pay fees (or lawyers) they can’t afford.

Internet radio has to pay performance royalties as well. In addition, they have to pay royalties to the actual performers (not just the songwriters). These royalty fees are handled by SoundExchange – who collects for all performers (including CC artists), not just those with a PRO. Terrestrial radio does not have to pay these fees, but there are bills in Congress to change this.

There are also MECHANICAL royalties – paid to songwriters whenever a physical recording of their song (like a CD) is created. Digital downloads count as a “physical recording” under the law. These royalties are not handled by a PRO. Usually, they are handled by the Harry Fox Agency (which, I should note, has not gone on an anti-CC tirade).

Now, about Creative Commons. It seems like some ASCAP people believe that CC lets people take the music that ASCAP represents, and release it under a CC license. This is completely false. That would be copyfraud, which is against the law – just as if you claimed a complete copyright over that music. Just as if ASCAP claimed a license over BMI music.

A company can only use music if it’s not licensed under a “non-commercial” license. Just about all the CC-licensed music I’ve seen (including my own) involves a non-commercial license. If a company did try to use it without permission, then they would be guilty of copyright infringement.

So there is no inherent conflict between CC and ASCAP. CC does not prevent anyone from charging for commercial use. Unfortunately, ASCAP doesn’t seem to care, instead preferring to attack a “copyleft” strawman.

Does free music – even for commercial use – automatically “devalue” professional music? I don’t think it does, but if I’m wrong, that’s a problem for the professional musician. If you can’t compete with amateurs, then you’re not a very good professional.

It’s like medicine: I could get all the medical advice I want from an average Joe on the street for free. I’ll still pay to go to a doctor – because doctors are highly skilled, and know what they’re doing. If my doctor didn’t know anything more than an average Joe, then I wouldn’t pay him a dime. And if your music is not better than an amateur’s, then maybe you shouldn’t be paid either.

That’s what a free market is all about.

The first and most important of these is the notion it’s immoral for amateurs and volunteers to compete with paid professionals, or for professionals to charge less than what the market will bear. My normal response to that is that is how the free market is supposed to work, and that any professional who can’t successfully compete with amateurs doesn’t deserve to be a professional. In the case of the arts, I think it holds even more: if an internationally recorded singer/songwriter has serious fears of lost income because other composers choose to give away their music for free (for whatever reason), then either he’s got bigger problems than competition or he really doesn’t understand his listeners: one composer’s work isn’t much of a substitute for another’s, and the availability of great work free of charge (that would include most of the well known classical and folk music in circulation) doesn’t mean that people won’t pay to listen to and perform music that’s really worth what its publishers charge for it.

The second assumption is the idea that a desire to change or even repeal existing law implies opposition to enforcing it. While it is true that many people, including myself, think that copyright has gone much farther than can seriously be expected to “promote progress in science and the useful arts”, that some of the enforcement tactics employed in recent years are both unconscionable and legally questionable, and that infringement penalties in many cases, bear no relationship to the actual harm done to copyright holders (it is actually possible to hold such positions while still favoring an effective system of copyright), it is our privilege and duty as citizens to discuss matters of public policy that seem important to us, so long as we don’t slander or misrepresent the positions of others. Those such as Mr. Williams, who see things differently, have exactly the same privilege and duty and should act accordingly. That way we can have some real debate on the issues of the day, possibly even leading to better public understanding of the issues on all sides, and better policies resulting from that understanding. ASCAP may even find this to be more productive than the usual approach of using campaign contributions to reward “friends” and punish “enemies”, which has the unfortunate side effects of promoting corruption, and undermining public confidence in the political process and the rule of law. While it is unfortunately the case that opponents of existing laws often find it more productive to try to frustrate enforcement of those laws, rather than to openly advocate their repeal or amendment, I think there are still plenty of others willing to advocate repealing or reforming laws they don’t like, while still obeying such laws in the meantime.

What we really need is an honest debate on the scope and duration of copyright. I don’t think we’re going to get it, since people have gotten too used to only seriously discussing policy with those predisposed to agree with them, while demonizing or ridiculing those who happen to disagree, but the debate is necessary, nonetheless.

How can ASCAP even claim like so?

If only I had more funds right now, this would’ve prompted me to help the CC more by donating…

In my view, im not bothered about places such as chip shops, hairdressers, taxi drivers etc playing my music without me getting paid. The first time i found out that this is what MCPS/PRS regarded as “public performance” i thought “eh?!”. They arent making money out of the music so what the heck?

However, if they used my music to advertise them, then that is different.

Then you have small snippets on websites that SELL music. they not only have to pay for the music they sell (which is only right) but also have to pay for the snippets that are being used to sell the music. So in a sense the website is paying royalties twice for the same track.

Thats is why im not with MCPS/PRS. when someone sets up a collection agency that takes into account CC licensed material then i will join them.

Dear ASCAP,

I have been a composer member of ASCAP for several years. I was disgusted by your grossly one-sided letter soliciting my contribution to your “Fund for the Arts.” ASCAP has consistently misrepresented the purpose, the history, and the facts of copyright — not to mention the mission and
activities of Creative Commons, Public Knowledge, Electronic Frontier Foundation, and other public-interest organizations — apparently in order to fatten its royalty stream, deprive musicians of the ability to use each
other’s work, and prevent listeners from enjoying music to which the law and the history of copyright entitle them. I recently completed a research paper on music copyright that backed up my reading of this situation.

I have sent a copy of this letter and your letter, and a contribution of $100 each, to Creative Commons, Public Knowledge, and EFF.

Sincerely,

L Peter Deutsch