Music & Copyright: ASCAP vs. The World; The World vs. ASCAP?

How would you react if you were a musician and the society of authors and publishers that represents you writes you officially to discourage supporting entities like Creative Commons, Public Knowledge or the Electronic Frontier Foundation, putting them on the same level as copyright thieves? Or ever to donate funds to “fight” these supposed “thieves”?

Certainly – in a historical moment in which you probably are enjoying sites and services such as Internet Archive and you have made your own use of a CC license at least once, maybe in places such as Wikipedia or Flickr – you would feel at least a bit perplexed.

But this is what happened to some members of (once?) respectable US society ASCAP, as reported by sites and blogs over the last couple days, starting with BoingBoing.

ASCAP is one of the three “sisters” (the other two being BMI and SESAC) dealing in music performance rights in the USA. It is one of the most important royalty collection agencies worldwide, for the music industry.

And for years has been embracing technology in a positive way; for example allowing public access to the ACE database: a searchable archive of millions of records which is an indispensable tool for some music professionals seeking for permissions, sample clearances, or simply checking credits when reprinting a certain song on cd or as mp3.

ASCAP – unlike other societies like Italy’s SIAE – is not difficult or expensive to join to. It just costed $10 to join in days when SIAE not only asked you much more than that but also required to complete one or two exams to prove you were able to write/read music and to compose lyrics. It costs a one-time $35 fee now with no annual dues (our lovely SIAE here has annual dues that are about three times ASCAP’s one-time fee).

But over the last couple of decades, ASCAP in various moments has self-exposed, causing a level of controversy.

Sometimes it was for a good reason: ASCAP seeked eventual performance royalties from download services; but honestly, the law never clearly explained what a downloaded mp3 is. Does it involve mechanical (reproduction) rights or performance rights? After all, a file transmitted over the internet is neither a printed record nor a song played in a club or on the radio. ASCAP lost, this time. But it was for a good cause, we could say.

Some other moves sound dumber, though.

Recently, ASCAP has attacked AT&T over ringtones (should people pay ASCAP when the phone rings and a fragment of song is “publicly” heard?); asked for double royalty payments on YouTube videos (i.e. payments from those who embed videos too, even if actually YouTube already pays for videos embedded elsewhere… since it is hosting that content!); asked sites like Amazon and Apple iTunes to pay for 30 second streaming clips (traditionally, in the US, those never required any payment since they are considered promotional excerpts, that help preview and sell tracks).

Finally sued a Manhattan pub over unpaid licensing fees, putting Bruce Springsteen’s name in the lawsuit (without Springsteen knowing or wanting to be involved); and the memory of a 1996 public relations disaster is still indelible: that was the time when ASCAP attacked girl scouts singing around campfires.

ASCAP lost the 2009 ringtone case in a District Court: public ringing is not a commercial public performance; phone companies and users don’t have to pay a royalty every time the phone rings.

It seemed they were really scraping the barrel between last year and the first months of 2010. Instead, a new level was reached when ASCAP urged some members – in writing – to finance fighting entities such as EFF, Creative Commons and Public Knowledge.

The timing for ASCAP’s move is suspicious. Does it have anything to do with CC’s “Catalyst Grants” initiative, collecting funds to “empower individuals and organizations everywhere that are working to make knowledge easily, freely, and legally available to everyone”? For the record, as I write, the initiative has collected over 27,000 of the proposed $100,000 to be distributed to creators. The Milan Chamber of Commerce – which certainly will not be happy in being labeled as a supporter of presumed “copyright thieves” – happily donated 10,000 Euros (over $10,000) to support innovation.

I tried to reach some of the parties involved and the reactions are mostly as expected, apart for the fact that Lawrence Lessig chose the wrong moment to pack for holidays, apparently (he was busy “trying to pull the world together”, in his words, before taking a break with the family).

Art Brodsky of Public Knowledge sent a quick message (through his Blackberry) that defines very well his astonishment and perplexity on ASCAP’s actions: “We are puzzled by their attention to us. We are in favor of a balanced copyright policy, not in favor of theft“.

Eric Steuer, Creative Commons‘ Creative Director told me:

It’s very sad that ASCAP is falsely claiming that Creative Commons works to undermine copyright. Creative Commons licenses are copyright licenses – plain and simple, without copyright, these tools don’t even work. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Many tens of thousands of musicians, including acts like Nine Inch Nails, the Beastie Boys, David Byrne, Radiohead, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren’t looking to stop making money from their music. In fact, many of the artists who use CC licenses are also members of collecting societies, including ASCAP. Incidentally, that’s how we first heard about this email campaign – many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons.

Another reply to ASCAP came to us from Rebecca Jeschke, Media Relations Director of the Electronic Frontier Foundation:

We don’t really have much to say about this. Certainly, we are not “mobilizing to undermine ASCAP members’ copyrights” nor do we “want all music to be free.” We simply want to preserve balance and ensure that the Internet and digital technologies continue to empower people as consumers and creators. We believe that artists should be compensated for their work, and one proposal we have is Voluntary Collective Licensing:

The proposal mentioned by Jeschke is nothing new. The EFF document is dated 2008.

And if you wanna laugh, it was 2001 when I myself suggested (sorry, original article written for Interlex is in Italian…) that after all the original Napster was like other “private copy” systems, only without physical media (cd or cassette) involved. Of course there was no compensation form for copyright owners, unlike other media, and that was the big problem.

But this means a similar model could have been used, if the relevant parties had agreed on it.

ASCAP and other similar entities had more than a decade to express their view on that point, but apparently they never stopped for a moment to think. Lawsuits money could have been saved, consumers might have been given access to music and more rights; authors would have been compensated.

ASCAP could take a chance to examine EFF’s old proposal, propose suggestions to it, or – if any – alternative solutions to the old filesharing compensation problem; instead of scaring author members about nonexisting “threats” by entities such as CC, EFF and PK, that have only helped authors – and consumers – so far.

Special thanks to: Nicola D’Agostino, Rebecca Jeschke (Electronic Frontier Foundation), Art Brodsky (Public Knowledge), Joichi Ito, Eric Steuer (Creative Commons).