Attacks On The Creative Commons Licenses

A while back I predicted that the Creative Commons Licenses would come under attack, as they give the artist tools that they can use to market themselves, and avoid having to become captives of the ‘Content Distribution Industries.’ That was an easy prediction to make. The Corporate Welfare Bums of the so called ‘Entertainment Industry’ had already been attacking new methods of distributing content, all of the way back to the historical attacks on the printing press.

But the ‘Entertainment Industry’ is for the artists you cry. After all, they’ve said that they have the artists best interests in mind!

Sorry. I’m a cynic. From what I can see their only interest is making as much money as possible, for as little effort as possible. There’s nothing wrong with making money. The problem is when anti-competitive means are used to block someone else from making money.

Consider the lawsuit which forced Internet Service Providers to block The Pirate Bay in Italy. It’s the equivalent of blocking your neighbor’s lane by flooding it, so that he can’t deliver his harvest to market, leaving all of the sales to you, and allowing you to raise your prices to the maximum the market will bear.

A similar thing is happening to the Creative Commons Licenses. The Czech government is working on updating their copyright laws. A leak of the proposed draft showed that:

The leaked draft of the copyright bill would put a whole new set of restrictions on public licensed materials (licenses include Creative Commons). Under the draft text, anyone who wants to use a public license must report to a copyright collective administrator. The administrator would then review the work in question and the creator would have to prove that he or she has created that work in the first place. Then, and only then, can a creator legally use a public license of their choice. (Thanks to Zeropaid).

A discussion of the new Czech law was carried out at TechDirt, where some really amazing comments were made. With no evidence that it had ever happened, a series of people defended the draft Czech legislation starting with:

Am I understanding this correctly – the Czechs want to introduce a law that prevents people who don’t rightly own their content (i.e. plagiarists) from using a public license? Is that it? So how is this an attack on the options for creators? It appears to me that this is a sensible proposal to strengthen the position of legitimate artists and make it harder for the rip-off merchants. (Italics added).

Note that there is no proof that this has ever happened. No wait, there is proof! Chris Castle, an attorney who specialized in Copyright Law tried to put Hey Jude under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. (Google Cache version is here in case Chris suffers an attack of good sense and removes the post – I also have an electronic copy backed up as evidence).

In simple terms, the only known case of this happening, occurred when a copyright attorney decided to prove it could be done. Rather than attacking the Creative Commons, Chris should be asking why the Czech Republic would suddenly want to change copyright law so drastically, and in ways that conflict with the International Obligations. Someone involved in putting together the draft bill had to have reason to believe that it was important to add this to the bill, which means that someone else had to have talked to him or her about the non-issue. Who would do this?

Simple. The Corporate Welfare Bums of the Entertainment Industry. The same people who would rather that the Federal Bureau of Investigation in the United States pursue copyright cases, rather than important things like Identity Theft. The same people who are attempting to block artists from using new business models like Torrent Sites, so that the consumer has no other place to get their entertainment. The same companies who claim to care about the artists, but regularly cheat them. The same people who encourage their representatives to use Lies of Omission so that citizens don’t know who is being represented in blog posts arguing for anti-consumer legislation to be introduced.

And then of course we have The American Society of Composers, Authors and Publishers sending a letter to it’s members asking for money to use to lobby against the Creative Commons Licenses, and when they are called on the issue, saying that they don’t want to talk about it. ASCAP is a collection society, which supposedly works for the artists, however in common with other collection societies it now appears to believe that it owns the artists, because it is trying to block them from maximizing their earning potential in ways that ASCAP does not make any money from.

This is just the start of the attack on the Creative Common Licenses. It is similar to the attacks that have been made on the Free and Open Source Software licenses over the last ten years, and made for the same anti-competitive reasons.


Wayne Borean

Tuesday August 31, 2010


Will 2011 See An Earthquake Hit The Server Manufacturers?

We’ve heard many predictions over the years about the impending death of Microsoft, Intel, AMD, and other big players in the computing world. There’s always some new technology on the horizon that could be a game changer. In most cases the new technology is over hyped, and never meets the expectations that the Public Relations people push. Still writers like myself continue to follow these new technologies. We have to. It’s never possible to be certain whether the new development is going to be a disruptive technology, or a flash in the pan (the term ‘a flash in the pan’ goes back to a primitive firing technology used on early guns – sometimes it would burn (flash) without igniting the gunpowder in the firing chamber, and thus the gun would not fire).

A recent article from Semi-Accurate is about the possible adoption of one potentially disruptive technology. Apparently there is a rumor going around that FaceBook is considering using ARM processors in their new Oregon Data Center.

Currently commodity (inexpensive) servers use the X86 architecture, which is the same basic architecture used in most personal computers, including those made by Dell, HP, Apple, Acer, ASUS, etc. For those without a technical background, servers ‘SERVE’ data, whether to websites, or directly to personal computers, or to other servers. Companies like Facebook or Google can require tens of thousands of servers to run their websites. Even using very inexpensive hardware, the costs for a large website can be incredible, so large sites like these are always looking for better (less expensive) options.

X86 technology has changed a lot since the first X86 chips were introduced in 1978. Over the years developments have lead to faster and faster processors, better power management, expanded capabilities, etc. Attempts to develop competing architectures such as the Itanium, have floundered on the rocks due to the massive popularity of the X86 processors. While the X86 technology has had, and still has, a lot of issues, it works, there’s a wide range of available software for it, and, well, change is disruptive. For many people changing to another technology just isn’t worth the risk.

At the same time, the ARM series of processors has also been a success. While it isn’t used in desktop computers, there are a few NetBooks built on the ARM platform. But where ARM really shines is in Cell Phones and other portable devices where low power consumption is a necessity. Virtually every Smart Phone in existence uses an ARM core of some sort, including the IPhone, and all of the Android phones. Apple’s IPad also uses an ARM core, as do a lot of other portable devices. Like the X86 architecture, the ARM architecture is continually evolving.

While older ARM processors were just not capable enough to be used in servers or personal computers, the ARM architecture has been evolving at a fast pace, and if it has evolved to the point where it is economically feasible to use it in servers, it could be a real game changer.

The reason why ARM is so intriguing as a server core is power usage. If the low power requirements of the ARM design could be used in servers, it could hugely impact the bottom line of large server users. Facebook uses a lot of servers, and their electricity costs are a significant portion of the company’s cost structure. Using ARM processor based servers could cut those costs dramatically, assuming that the newer ARM processors are suitable for use in servers. This would hurt Intel, the biggest manufacturer of X86 processors, badly.

It would also have negative implications for Microsoft. Microsoft Windows is X86 specific. While Microsoft at one time did offer versions for other processors, they no longer do so, and it would be extremely difficult to make it work on ARM. The operating system that Microsoft does offer for ARM, Windows Mobile, is unsuitable for use in servers (it was originally designed as a competitor to Palm OS, and later modified to become a Cell Phone OS).

Currently Facebook is using a modified Linux/Apache system, like almost all large websites on the net. The Linux kernel already runs on the ARM processors (Android phones uses a modified Linux system). Apache, the most widely used server software, would be relatively easy to port to the ARM architecture. There are no technological blocks to moving to ARM for Facebook (or for that matter, Google), assuming that ARM can handle the workload.

So the question is, has ARM evolved enough to make it feasible for Facebook to switch? I don’t know. If it has though, it could conceivably cause a shakeup of epic proportions.


Wayne Borean

Monday August 30, 2010

Corporate Copyright Scofflaws 0006 – The RIAA Member Companies

Please Note: The Header Has Been Modified – Please Read It!

The largest copyright pirates are the large corporations, particularly in the content distribution business. Yes, those companies who scream the loudest that their customers are ‘pirating’ movies, songs, books, etc. In this series, we are going to look at cases where these companies have engaged in large scale copyright infringement, or in other ways have been ripping off artists.

In all cases I will be working with published information. It is possible that this information may not be up to date, or may not accurately reflect the current status of the situation. If I am supplied documentary evidence which shows a different status, I will publish an update. In cases where a lawsuit ensued, and the settlement was sealed, I will not update the published information, unless I am provided with:

1) A copy of the settlement
2) Permission to publish the settlement

While I realize this may cause problems for one or more of the parties involved, I believe in only publishing things I can reference, so that those who read this have an evidence trail to follow.

Note that the above text will appear in every article, if you’ve read it once, feel free to skip down to the divider.


Why would I pick on the RIAA? Simple. I believe Janis Ian. I believe her because I’ve heard the same story from other Major Label artists. Going back to Janis’s article The Internet Debacle: An Alternative View she says:

Costing me money? I don’t pretend to be an expert on intellectual property law, but I do know one thing. If a music industry executive claims I should agree with their agenda because it will make me more money, I put my hand on my wallet…and check it after they leave, just to make sure nothing’s missing.

Does this sound like someone who’s happy with her treatment by the Major Labels? And a further comment later in the article:

Again, from my personal experience: in 37 years as a recording artist, I’ve created 20+ albums for major labels, and I’ve never once received a royalty check that didn’t show I owed them money.

Another common complaint I’ve heard from a wide variety of artists.

In simple terms, the RIAA member companies (Major Labels) are ripping off the artists who are their suppliers. Is it any wonder that acts like Nine Inch Nails have abandoned the labels to do their own promotions, and offer free downloads of their music directly from their website (and also from The Pirate Bay) under a creative commons attribution non-commercial share alike license?

So why do the RIAA member companies expect the artists to support them? Oh, they have received some support. Mostly from artists who are older than I am, and possibly don’t understand the new ways of making money. Old folks like Don Henley (63 years old), Randy Bachman (66 years old),  John Mellencamp (58 years old), Bono (at 50, the young turk) don’t get it. Even though they’ve never made money from the record companies anyway – only from touring and selling merchandise, they don’t understand that they are being ripped off. It is somewhat reminiscent of the stories you hear about battered wives going back to their abusers.

Take a look at a statement that Warner Music sent to Tim Quirk of To Much Joy, and read Tim’s comments. His final comment:

***** Of course, these two possibilities are not mutually exclusive – it is also possible that labels are evil and avaricious AND dumb and lazy, at the same time.

got me laughing so hard I nearly fell off the couch. I also suggest reading Mike Masnick’s article about Tim’s statement.

You’re probably shaking your head. This guy has got to be nuts. There’s no way something like this would be allowed. If you are thinking that you should read Steve Albini’s article The Problem With Music. And ask yourself this – why would so many artists, be complaining if the RIAA member companies weren’t ripping them off?

The problem with ripping people off, is that word does get out. And the younger generation of artists doesn’t want to get taken the same way. To quote Mike Masnick:

Today, however, the opportunities for the young, fledgling songwriter to build a following, build a business model and make a living have grown tremendously. Ask Jonathan Coulton. Or Corey Smith. Or Matthew Ebel. Or Moto Boy. Or any one of thousands of other songwriters who didn’t go the major label route, but have figured out ways to make a living (or better) that simply would not have been possible just a few years ago.

This doesn’t help the older artists, who were forced to hand over their copyrights to the labels as part of getting signed. Remember earlier when I said the older artists possibly don’t understand the new way of doing business? Maybe that isn’t the case. I’ve recently begun to wonder if some of recent string of complaints about the internet weren’t paid for by the labels. After all, if you’ve been a star for years, but not making any money, you have to have something to retire on. Not everyone can continue doing music into their seventies or eighties like the Rolling Stones.


Wayne Borean

Monday August 30, 2010

The Beautiful And Talented Janis Ian – Fallout: A Follow Up To The Internet Debacle

Here’s the second of Janis Ian’s articles in the Internet, and it’s effect on the Music Industry. Read it and ask yourself, why haven’t I heard of this before? And yes, I do have permission to publish this, at the bottom of both articles she has written:

You are welcome to post this article on any cooperating website, or in any print magazine, although we request that you include a link directed to and give Janis Ian writer’s credit!

Hey, I’m more than happy to give Janis writer’s credit! And my thanks for all of the hard work she did.

So from here on in, you are reading Janis Ian’s ‘Fallout: A Follow Up To The Internet Debacle’


Wayne Borean

Sunday August 29, 2010


Fallout: A Follow Up To The Internet Debacle

Originally published August 1, 2002

I. I am out of my depth

Quite frankly, when I spent three months researching and writing “The Internet Debacle” for Performing Songwriter Magazine, I wasn’t planning to become part of a “cause”. I assumed that some of the magazine’s 35,000 subscribers might read it, and a few might email me about it. I’d been writing articles for “Perfsong” since its inception, and had never gotten more than a couple of emails in response to any of them. So I went into it blind.

I had no idea that a scant month later, the article would be posted on over 1,000 sites, translated into nine languages, and have been featured on the BBC, in USA Today, and a host of other press.

The article came out eight weeks ago, and once we saw the reaction, we posted it on my own website soon after. In the past twenty days I’ve received over 2,200 emails from unique senders (people who’ve never been to my site before). I’ve answered every one myself, getting an education I never intended to get in the process. I’ve corresponded with lawyers, high-schoolers, state representatives, executives, and hackers. And I’ve felt out of my depth for a good portion of it.

I am in no way qualified to answer most of the questions I received, though I did my best, or referred them to someone else for discussion. The issues here are much, much bigger than I can encompass. I only wrote about downloading, record companies,and music consumers; within a few days, I found myself trying to answer questions like “Who owns the culture?” for myself. Length of copyright, fair use on the web, how libraries are being affected – these are all things I hadn’t given much thought to before.

When I began researching the original article, I was undecided as to whether downloading was wrong, but the more I researched, the more I reached the conclusions stated in “The Internet Debacle.” I’ve had only a few weeks since the first article was published, and I’ve been on the road the entire time, so I haven’t had the opportunity to research most of these questions. I want to thank Jim Burger and other attorneys and fans who kindly sent me articles and court cases to read off-line, while I was sitting in the car en route to the next city.

Do I still believe downloading is not harming the music industry? Yes, absolutely. Do I think consumers, once the industry starts making product they want to buy, will still buy, even though they can download? Yes. Water is free, but a lot of us drink bottled water because it tastes better. You can get coffee at the office, but you’re likely to go to Starbucks or the local espresso place and bring it back to the office with you, because that coffee tastes better. When record companies start making CD’s that offer consumers a reason to buy them, as illustrated by Kevin’s email at the end of this article, consumers will buy them. The songs may be free on line, but the CD’s will taste better.

II. My current conclusions

In an article for Newsweek, Steven Levy writes:
“So why are the record labels taking such a hard line? My guess is that it’s all about protecting their internet-challenged business model. Their profit comes from blockbuster artists. If the industry moved to a more varied ecology, independent labels and artists would thrive – to the detriment of the labels… The smoking gun comes from testimony of an RIAA-backed economist who told the government fee panel that a dramatic shakeout in Webcasting is ‘inevitable and desirable because it will bring about market consolidation’.” [“Labels to Net Radio: Die Now”, Steven Levy in Newsweek, July 15, 2002.]

There are, as I see it, three operative issues that explain the entertainment industry’s heavy-handed response to the concept of downloading music from the Internet:

The music industry is no different from any other huge corporation, be it Mobil Oil or the Catholic church. When faced with a new technology or a new product that will revolutionize their business, their response is predictable:

  1. Destroy it. And if they cannot,
  2. Control it. And if they cannot,
  3. Control the consumer who wishes to use it, and the legislators and laws that are supposed to protect that consumer.

This is not unique to the entertainment industry. This mind-set is part of the fabric of our daily lives. Movie companies sued consumers and hardware manufacturers over VCR manufacturing and blank video sales, with Jack Valenti (Motion Picture Association of America chairman) testifying to Congress that “the VCR is to the movie industry what the Boston Strangler is to a woman alone at night” – and yet, video sales now account for more industry profit than movies themselves!

When Semelweiss discovered that washing your hands before attending a woman in childbirth eliminated “childbed fever”, at a time when over 50% of women giving birth in hospitals died of it, he was ridiculed by his peers, who refused to do it.

No entrenched model has ever embraced a new technology (or idea) without suffering the attendant death throes.

The entertainment industry is still operating under laws and concepts developed during the 1930’s and 1940’s, before cassettes, before boom boxes, before MP3 and file-sharing and the Internet. It’s far easier to insist that all new technologies be judged under old laws, than to craft new laws that embrace all existing technologies. It’s much easier to find a scapegoat, than to examine your own practices.

As they say, “You can’t get fired for saying no.”

The American Dream.
The promises all of us are made, tacitly or otherwise, throughout our lives as Americans. The dream we inherit as each successive generation enters grade school – that we will be freer than our grandparents, more successful than our parents, and build a better world for our own children. The promises made by our textbooks, our presidents, and our culture, throughout the course of our childhoods: Fair pay for a day’s work. The right to leave a job that doesn’t satisfy, or is abusive. Freedom from indentured servitude. The premise that every citizen is allowed a vote, and no one will ever be called “slave” again. The promise that libraries and basic education in this country are free, and will stay so.

These are not ideas I came up with on the spur of the moment; this is what we’re taught, by the culture we grow up in.

And of everything we are taught, one issue is always paramount – in America, it is the people who rule. It is the people who determine the government. We elect our legislators, so they will pass laws designed for us. We elect and pay the thousands of judges, policemen, civil servants who implement the laws we elect our officials to pass.

It is the promise that our government supports the will of the people, and not the will of big business, that makes this entire issue so damning – and at the same time, so hope-inspiring.

When Disney are permitted to threaten suit against two clowns who dare to make mice out of three balloons and call them “Mickey” as part of their show, the people are not a part of it. When Senator Hollings accepts hundreds of thousands of dollars in campaign contributions from entertainment conglomerates, then pretends money has nothing to do with his stance on downloading as he calls his own constituents “thieves”, the people are not involved. When Representatives Berman and Coble introduce a bill allowing film studios and record companies to “disable, block or otherwise impair” your computer if they merely suspect you of file-trading, by inserting viruses and worms into your hard drive, it is the people who are imperiled. And when the CEO of the RIAA commends this behavior as an “innovative approach to combating the serious problem of Internet piracy” [Hilary Rosen, in a statement quoted by Farhad Manjoo, June 2002], rather than admitting that it signifies a giant corporate step into a wasteland even our government security agencies dare not enter unscathed, the people are not represented.

III. A hopeful thought

“If classroom copying is sharply curtailed, if we give someone a software patent over basic functions, at some point the public domain will be so diminished that future creators will be prevented from creating because they won’t be able to afford the raw materials they need. An intellectual property system has to insure that the fertile public domain is not converted into a fallow landscape of walled private plots.” [James Boyle in the New York Times, March 31, 1996.]

I said that the research and information I’ve received over the past three weeks has made me hopeful, and I meant it. Because I know that although RIAA and their supporting companies can afford to spend 55 million dollars a year lobbying Congress and in the courts, they cannot afford to alienate every music buyer and artist out there. At that point, there will be a general strike, make no mistake. Just one week of people refusing to play the radio, buy product, or support our industry in any way, would flex muscles they have no idea are out there.

And I know that although businesses can spend unlimited dollars on campaign funding, only the people can elect a government. I believe that to a politician, no amount of lobbying money is worth the price of being voted out of office.

That, my friends, is why I have hope. Because I know that in America, votes count. Because I know that if enough people understand this issue, and vote accordingly, right will win. Legislation will be enacted that takes the will of the people into consideration, and favors their right to learn over Disney’s right to control. Internet radio, currently in peril, will go offshore and out of the country if necessary, so audiences can hear thousands of songs instead of a narrow playlist. The RIAA will become a small footnote in the pages of Internet history, and the people will have triumphed – again.

IV. A modest proposal for an experiment that might lead to a solution:

“The record companies created Napster by leaving a void for Napster to fill.” [Jon Hart and Jim Burger, Wall Street Journal April 2, 2001]

1. All the record companies get together and build a single giant website, with everything in their catalogues that’s currently out of print available on it, and agree to experiment for one year.

This could be the experiment that settles the entire downloading question once and for all, with no danger to any of the parties involved. By using only out of print catalogue, record companies, songwriters, publishers and singers won’t be losing money; the catalogue is just sitting in storage vaults right now. And fans can have the opportunity to put their money where their mouths are; if most people really are willing to pay a reasonable price for downloaded music, traffic on this site should be excellent. If most people really are downloading from sites like Napster because there’s so much material unavailable in stores, traffic on this site should be unbelievably good.

2. The site offers only downloads in this part of the experiment.

Since all the items on my proposed site are unavailable on CD, there’s no need to invest time and money linking to sites (or building record company sites) where consumers can buy them on a CD. This will also ensure that the experiment stays pure, and deals with only downloading. It would also preclude artists like myself from offering downloads of material available on CD’s, skewing the results.

3. Here’s where the difficult part comes in. All the record companies agree that, for the sake of the experiment, and because these items are currently dead in the water anyway, they’re going to charge a more-than-reasonable price for each download.

By “reasonable” I’m not talking $1.50 per song; that’s usurious when you can purchase a brand-new 17-song CD for a high price of $16.99, and a low price of $12.99. I mean something in the order of a quarter per song. I read a report recently showing that in the heyday of Napster, if record companies had agreed to charge just a nickel a download, they would have been splitting $500,000 a day, 24 hours a day, 52 weeks a year.
Record companies would have to agree that there’d be no limits on how many songs you could download, so long as you were willing to pay for each one; this is a major reason their own sites haven’t been more successful.

Keeping the rate that low would:

  1. Encourage consumers to use the site, even those of us for whom downloading with a modem is time-consuming and tedious.
  2. Spread a lot of great old music around – and music, like all art, stands on the bones of those who’ve gone before. One of the big problems with so much catalogue out of print is that whole generations are growing up never having heard the “originals”, but only the clones. It’s always better to build on the real thing.
  3. Do a great deal to repair the record companies’ credibility in the eyes of consumers – in fact, it could be made to look like a gift of gratitude for all the support consumers have shown over the years! And while I know this may not seem important to the corporate model right now, it will become increasingly important as the world continues to shrink, mistrust of large business grows, and more and more people go back to “brand loyalty”. If Sony are being reasonable, and BMG are not, sooner or later the Sony brand will conquer the market, and BMG will have to fall into line or fall out. That’s capitalism at its best, isn’t it?

4. Last but not least, the monies received would be portioned out fairly. I’m no economist, but the model might read something like this:

  1. The record companies would bear the brunt of the costs involved in creating the site. There are plenty of ways for them to make money from this experiment, whether it works or not, and the massive exposure of their out of print catalogue, with a little attention to which albums receive the most downloads, could create a whole new sub-industry in a short time. It’s good for them to share, and to pool their resources; if nothing else, it will stop their constant bickering for a while.
  2. A reasonable (there’s that word again) amount would be deducted off the top of each download to pay for costs. This deducted amount would not, as is traditional, be borne completely by the artists or their heirs. It would be shared by all parties concerned – companies, singers, writers. Limits would be put on costs, so companies couldn’t divert funds to pay their normal operating costs. And the accounts would be published on the website monthly, open for inspection by anyone. If you did this, they could even set up the initial experiment as a non-profit, and deduct the cost of putting up the site! Record companies would not be allowed to charge for storage fees, artwork, free goods to Guam; consumers could begin to trust them again.
  3. From that point on, share and share alike. Let the record company, the artist, the songwriters and the publishers split the take equally. Don’t laugh! The costs of that album have already been paid, no matter what they tell you, and the only cost associated with this is putting the stuff on line, then maintaining the site itself. And again, the stuff was just sitting in storage; they weren’t expecting any earnings from it. The songwriters, who traditionally get paid more than the singers, would be fairly compensated and have nothing to complain about. And the singers, for once, would be paid for the works they’d recorded.
  4. In an ideal world, several different types of downloading formats would be available – wav. files, MP3 files, Ogg Vorbis files. Maybe you’d charge a tiny bit more for a higher sampling rate. And like the record companies, any companies owning the software for these downloads would donate their software for the sake of this experiment, with future terms to be negotiated later if it succeeds.What a great way for consumers to decide which one they like! What a great way for software companies to prove that theirs is better!

Imagine a different kind of musical Internet
There are all kinds of other protocols you could implement once you knew whether this worked. For instance:

  • Imagine an Internet where there’s one giant music site, easily accessible to anyone with a modem and computer. The site offers downloads at reasonable prices for everything and anything ever recorded, and links you back either to direct sales, or to other sites where you can purchase the music in CD, DVD, or other formats. Wouldn’t it be great to search under an artist’s name and literally be able to hear everything they ever did?
  • Links could be made from the artist and their work to press articles, streaming videos (I know, I know, but until we can all copy a stream to DVD as easily as we can from the TV to a video, it’s a non-issue), special artwork, interviews, movies, concert footage, even guitar lessons.
    Live cams could show artist’s concerts, from anywhere in the world, giving fans who can’t go to Japan the opportunity to see how the concert is different there. Venues that maintain live cams could have their own sub-websites, and charge a fraction of the cost of going to a concert for these. They could even be coupled with tours of the surrounding area, interviews with local fans and artists, and the like. Who knows – the music industry might actually wind up educating an entire global generation. It won’t affect concert sales, because people who go to a concert know they’re getting something very different from sitting at home watching it on a screen. Otherwise, MTV and VH-1 would have put theaters out of business years ago.
  • Last and most important, artists and consumers could feel like they were a part of something bigger than themselves, and actually become partners with the music industry. And that industry, instead of responding with Draconian measures and safeguards, could feel like they were actually a part of the community – helping to further the artistic and intellectual resources of this country, and of the world.

America has always exported its culture; that’s our number one route into the hearts of the rest of the world. Instead of shutting that down, let’s run with the new model, and be the first and the best at it. It’s a brave new world out there, and somebody’s going to grab it.

“The Internet Debacle’s” effect

And now, on to the fun stuff:

Emails received on this subject: 1,268 as of July 30, 2003 (does not include message board posts)

Number of times the article has been translated into other languages: 9. (French, German, Chinese, Japanese, Italian, Spanish, Portuguese, Russian, Yugoslavian.)

Times AOL shut my account down for spamming, because I was trying to answer 40-50 emails at a time quickly and efficiently: 2

Winner of the Put Your Money Where Your Mouth Is award: Me. We began putting up free downloads around a week after the article came out.

Change in merchandise sales after article posting (previous sales averaged over one year): Up 25%

Change in merchandise sales after beginning offering free downloads: Up 300%

Offers of server space to store downloads: 31

Offers to help me convert to Linux: 16

Offers to help convert our download files from MP3 to Ogg Vorbis: 9

Offers to publish a book expose of the music industry I should write: 5

Offers to publish a book expose of my life I should write: 3

Offers to ghost-write a book expose of my life I shouldn’t write: 2

Offers of marriage: 1

Number of emails disagreeing with my position: 9

Number of people who reconsidered their disagreement after further discussion: 5

Interesting things about the emails: All but 3 were coherent. Of those, one only seemed to be incoherent, but was in fact written by someone who spoke no English, and used as a translator. (Sample: “I love your articles and play your music for my babies” became “I love babies and want to touch your articles.”)

Silliest email: A disagreeing songwriter who said he was going to download all my songs, burn them to CD’s, and give them away to all his friends. Thank you!

Biggest irony: I’m writing this on a Sony Vaio laptop that came with my first ever CD burner, and easy instructions on how to copy a CD or download a file.

And from the emails:

“Several years ago the music industry reached an agreement with CD manufacturers to receive a royalty on blank, recordable CD’s to compensate for the effects of copying music.. the recording industry is receiving a royalty for the “Audio” CD so that it can be used for copying music, taking the money, and then turning around and complaining that the CD is being used to make “unauthorized” copies. Now what is up with that? make up your mind!” (bohannon)

“…America On Line became so prominent by sending out CDs of their product via direct mail. Their growth rate quickly exceeded the capacity of their infrastructure, but that problem does not affect the music industry: they have the infrastructure. Why in the world do they not sign more small artists to a one-record deal, with “first-dibs” rights guaranteed to the record companies, for a comparatively small fee to the artist for the first record? They could send out CDs just the way AOL does, except with maybe 20 cuts per CD, of different artists, mailed quarterly? Eighty good artists per year, in your mailbox. If only one catches fire, the record company exercises their “first dibs” option, the artists can’t bolt to a different label, and they get signed for a more standard record deal. Anyone who doesn’t catch on gets dropped after one CD… at least they got a shot. Would the cost of this positive publicity really be any more than the cost of fighting file sharing?” (henry1)

“…they should take a tip from the movie industry and modern DVDs, which so overload the consumer with clear and compelling value that even those who wouldn’t bat an eye about downloading a CD and not paying for it…have no motivation to spend dozens of hours downloading and piecing together all the value and quality available in a $25 DVD. I’ve bought DVDs for $20 where the movie was the tip of the iceberg–music tracks, documentaries, interactive presentations, audio tracks, stills, screen tests, and on and on….They can fight with compelling value–whether it’s built in videos, computer games, free tickets, unique passwords to go download bonus tracks, demo tracks and dance mixes…karaoke tracks for each song, alternate vocal takes…Who could, or would, want to spend the time reproducing all that via downloading? As long as the consumer experience of a music CD can be duplicated with an hour or two of downloading and a quick burn to CD, they aren’t going to convince anybody who might actually buy the CDs (but aren’t, because they can download them) to do so…Rather than do things to alienate the current base of consumers that regularly buy their product, they should focus on adding value to their product.” (kevin)

A Final Note

Our representatives are not in Congress or the Senate because they want to make a better living. They’re there because they want power, and influence. Without the office, they have neither.
If they believe their actions will cause large amounts of the population to vote against them, no amount of money will be sufficient to buy their cooperation. If you let your representatives know, en masse, that you will not vote for them if they support ridiculous measures such as the bill allowing media companies to spread viruses on the computer of anyone “suspected” of file-sharing, and if enough of you tell them so, they will NOT work hand in glove with the RIAA.

We cannot possibly match the monies the record companies can devote to litigation, but we CAN threaten to vote those representatives who are in bed with them out of office. And ultimately, it’s the votes they care about.

iTunes and More

Shortly after “The Internet Debacle” and “Fallout” were published, iTunes was announced. The success of iTunes has more than justified the stance taken in both of these articles.

In an article she wrote, Hilary Rosen speculated that Janis Ian wrote “The Internet Debacle” in order to gain publicity for her new album. However, no new Janis Ian album was in the works, let alone about to be released. The next Janis Ian album was not released until August 2003, a full year after the article first appeared.

You are welcome to post this article on any cooperating website, or in any print magazine, although we request that you include a link directed to and give Janis Ian writer’s credit!

Want to know how your politicians are voting on these issues? Go to

The Beautiful And Talented Janis Ian – The Internet Debacle:An Alternative View

I love Janis Ian. Her music is some of the most incredible stuff that I’ve ever heard. OK, so I was a typical, hormone overloaded teenage boy when I first heard her on the radio, and I thought she had the sexiest voice in the world. Sue me. Seriously though, I’ve always loved to listen to her.

About six months ago my wife, Heather (a singer/songwriter) pointed me at Janis’ website. Heather had been using ‘Stumble Upon‘, a Firefox add-on that allows you to look for content that other people have recommended, and since she has friends who are also singer/songwriters, her Stumbles are often music related.

Janis had posted a long article on copyright titled ‘The Internet Debacle: An Alternative View‘. In this article, and it’s follow up, ‘Fallout: A Follow Up To The Internet Debacle‘, Janis covered many of the same arguments I and others had been making since the copyright debate in Canada started to heat up (note that I am not claiming to be the first to have made these arguments – in fact I came late to the game).

The fun thing is that Janis wrote these two articles for Performing Songwriter Magazine in 2002. Yes, eight years ago. And they’ve been on her website ever since.

So why doesn’t anyone seem to know about them? Partially I suspect it’s because most of us don’t read Performing Songwriter Magazine. Partially it’s because while I and a lot of others consider Janis a big name, she has no where near the fan following of the Rolling Stones. As she points out in her article, she hasn’t released a lot of albums recently, though she still gets a fair bit of airplay on Rock stations. But still – she’s a lot more famous than most of us. How come no one seems to know she wrote this?

So let’s take a look at what Janis wrote back in 2002. At the bottom of both articles she has written:

You are welcome to post this article on any cooperating website, or in any print magazine, although we request that you include a link directed to and give Janis Ian writer’s credit!

Hey, I’m more than happy to give Janis writer’s credit! And my thanks for all of the hard work she did.

So from here on in, you are reading Janis Ian’s ‘The Internet Debacle: An Alternative View’


Wayne Borean

Sunday August 29, 2010


The Internet Debacle:An Alternative View

Originally published in Performing Songwriter Magazine, May 2002

“The Internet, and downloading, are here to stay… Anyone who thinks otherwise should prepare themselves to end up on the slagheap of history.” (Janis Ian during a live European radio interview, September, 1998)

When I research an article, I normally send 30 or so emails to friends and acquaintances asking for opinions and anecdotes. I usually receive 10-20 in reply. But not so on this subject!

I sent 36 emails requesting opinions and facts on free music downloading from the Net. I stated that I planned to adopt the viewpoint of devil’s advocate: free Internet downloads are good for the music industry and its artists.

I’ve received, to date, over 300 replies, every single one from someone legitimately “in the music business.”

What’s more interesting than the emails are the phone calls. I don’t know anyone at NARAS (home of the Grammy Awards), and I know Hilary Rosen (head of rhe Recording Industry Association of America, or RIAA) only vaguely. Yet within 24 hours of sending my original email, I’d received two messages from Rosen and four from NARAS requesting that I call to “discuss the article.”

Huh. Didn’t know I was that widely read.

Ms. Rosen, to be fair, stressed that she was only interested in presenting RIAA’s side of the issue, and was kind enough to send me a fair amount of statistics and documentation, including a number of focus group studies RIAA had run on the matter.

However, the problem with focus groups is the same problem anthropologists have when studying peoples in the field – the moment the anthropologist’s presence is known, everything changes. Hundreds of scientific studies have shown that any experimental group wants to please the examiner. For focus groups, this is particularly true. Coffee and donuts are the least of the pay-offs.

The NARAS people were a bit more pushy. They told me downloads were “destroying sales”, “ruining the music industry”, and “costing you money”.

Costing me money? I don’t pretend to be an expert on intellectual property law, but I do know one thing. If a music industry executive claims I should agree with their agenda because it will make me more money, I put my hand on my wallet…and check it after they leave, just to make sure nothing’s missing.

Am I suspicious of all this hysteria? You bet. Do I think the issue has been badly handled? Absolutely. Am I concerned about losing friends, opportunities, the possibility of gaining my 10th Grammy nomination by publishing this article? Yeah. I am. But sometimes things are just wrong, and when they’re that wrong, they have to be addressed.

The premise of all this ballyhoo is that the industry (and its artists) are being harmed by free downloading.

Nonsense. Let’s take it from my personal experience. My site gets an average of 75,000 hits a year. Not bad for someone whose last hit record was in 1975. When the original Napster was running full-tilt, we received about 100 hits a month from people who’d downloaded “Society’s Child” or “At Seventeen” for free, then decided they wanted more information. Of those 100 people (and these are only the ones who let us know how they’d found the site), 15 bought CDs. Not huge sales, right? No record company is interested in 180 extra sales a year. But… that translates into $2,700, which is a lot of money in my book. And that doesn’t include the ones who bought the CDs in stores, or who came to my shows.

Or take author Mercedes Lackey, who occupies entire shelves in my local bookstore and library. As she says herself: “For the past ten years, my three ‘Arrows’ books, which were published by DAW about 15 years ago, have been generating a nice, steady royalty check per pay-period each. A reasonable amount, for fifteen-year-old books. However… I just got the first half of my DAW royalties… and suddenly, out of nowhere, each Arrows book has paid me three times the normal amount!…. And because those books have never been out of print, and have always been promoted along with the rest of the backlist, the only significant change during that pay-period was something that happened over at Baen, one of my other publishers. That was when I had my co-author Eric Flint put the first of my Baen books on the Baen Free Library site. Because I have significantly more books with DAW than with Baen, the increases showed up at DAW first. There’s an increase in all of the books on that statement, actually, and what it looks like is what I’d expect to happen if a steady line of people who’d never read my stuff encountered it on the Free Library – a certain percentage of them liked it, and started to work through my backlist, beginning with the earliest books published. The really interesting thing is, of course, that these aren’t Baen books, they’re DAW—another publisher—so it’s ‘name loyalty’ rather than ‘brand loyalty.’ I’ll tell you what, I’m sold. Free works.”

I’ve found that to be true myself; every time we make a few songs available for free download on my website, sales of all the CDs go up. A lot.

And I don’t know about you, but as an artist with an in-print record catalogue that dates back to 1965, I’d be thrilled to see sales on my old catalogue rise!

Now, RIAA and NARAS, as well as most of the entrenched music industry, are arguing that free downloads hurt sales. (More than hurt – they’re saying it’s destroying the industry.)

Alas, the music industry needs no outside help to destroy itself. We’re doing a very adequate job of that on our own, thank you.

Here are a few statements from the RIAA’s website:

“Analysts report that just one of the many peer-to-peer systems in operation is responsible for over 1.8 billion unauthorized downloads per month”. (Hilary B. Rosen letter to the Honorable Rick Boucher, Congressman, February 28, 2002)

“Sales of blank CD-R discs have…grown nearly 2 ½ times in the last two years…if just half the blank discs sold in 2001 were used to copy music, the number of burned CDs worldwide is about the same as the number of CDs sold at retail.” (Hilary B. Rosen letter to the Honorable Rick Boucher, Congressman, February 28, 2002)

“Music sales are already suffering from the impact…in the United States, sales decreased by more than 10% in 2001.” (Hilary B. Rosen letter to the Honorable Rick Boucher, Congressman, February 28, 2002)

“In a recent survey of music consumers, 23%…said they are not buying more music because they are downloading or copying their music for free.” (Hilary B. Rosen letter to the Honorable Rick Boucher, Congressman, February 28, 2002)

Let’s take these points one by one, but before that, let me remind you of something: the music industry had exactly the same response to the advent of reel-to-reel home tape recorders, cassettes, DATs, minidiscs, VHS, BETA, music videos (“Why buy the record when you can tape it?”), MTV, and a host of other technological advances designed to make the consumer’s life easier and better. I know, because I was there.

The only reason they didn’t react that way publicly to the advent of CDs was because they believed CD’s were uncopyable. I was told this personally by a former head of Sony marketing back around 1983, when they asked me to allow them to release my album Between the Lines in CD format, at three-quarters the royalty rate I was contractually entitled to earn. (And why should I earn 25% less? “Because it’s a brand new technology.” And now, twenty years later, do I still earn 25% less on that CD? Of course!)

Regarding Rosen’s comments, who’s to say that any of those people would have bought the CD’s if the songs weren’t available for free? I can’t find a single study on this, one where a reputable surveyor such as Gallup actually asks people that question. I think no one’s run one because everyone is afraid of the truth – most of the downloads are being done by people who want to try an artist out, or who can’t find the music in print.

And if a percentage of that 1.8 billion is because people are downloading a current hit by Britney or In Sync, who’s to say it really hurt their sales? Soft statistics are easily manipulated. How many of those people went out and bought an album that had been over-played at radio for months, just because they downloaded a portion of it?

Sales of blank CDs have grown? You bet. I bought a new Vaio last December (ironically enough, made by Sony), and now back up all my files onto CD. I go through 7-15 CD’s a week that way, or about 500 a year. Most new PC’s come with Windows XP, which makes backing up to CD painless; how many people are doing what I’m doing? Additionally, when I buy a new CD, I make a copy for my car, a copy for upstairs, and a copy for my partner. That’s three blank discs per CD. So I alone account for around 750 blank CDs yearly.

And I’m sure the sales decrease had nothing to do with the economy’s decrease, or a steady downward spiral in the music industry, or the garbage being pushed by record companies. Aren’t you? There were 32,000 new titles released in this country alone during 2001, and that’s not including re-issues, Do-It-Yourself projects , or smaller labels that don’t report to SoundScan. Our Unreleased series, which we haven’t bothered SoundScanning, sold 6,000+ copies last year.

A conservative estimate would place the number of “newly available” CD’s per year at 100,000. That’s an awful lot of releases for an industry that’s being destroyed.

To make matters worse, we hear music everywhere, whether we want to or not; stores, amusement parks, highway rest stops. The original concept of Muzak (to be played in elevators so quietly that its soothing effect would be subliminal) has run amok. Why buy records when you can learn the entire Top 40 just by going shopping for groceries?

Which music consumers is the RIAA talking about here? College kids who can’t afford to buy 10 new CDs a month, but want to hear their favorite groups? When I bought my nephews a new Backstreet Boys CD, I asked why they hadn’t downloaded it instead. They patiently explained to their senile aunt that the download wouldn’t give them the cool artwork, and more important, the video they could see only on the CD.

Realistically, why do most people download music?

To hear new music, or records that have been deleted and are no longer available for purchase. Not to avoid paying $5 at the local used CD store, or taping it off the radio, but to hear music they can’t find anywhere else. Face it – most people can’t afford to spend $15.99 to experiment. That’s why listening booths (which labels fought against, too) have been such a success.

You can’t hear new music on the radio these days. I live in Nashville, Tennessee – “Music City USA” – and we have exactly one station willing to play a non-top-40 format. On a clear day, I can even tune it in. The situation’s not much better in Los Angeles or New York. College stations are sometimes bolder, but their wattage is so low that most of us can’t get them.

One other major point: in the hysteria of the moment, everyone is forgetting the main way an artist becomes successful – exposure. Without exposure, no one comes to shows, no one buys CDs, no one enables you to earn a living doing what you love. Again, from my personal experience: in 37 years as a recording artist, I’ve created 20+ albums for major labels, and I’ve never once received a royalty check that didn’t show I owed them money. So I make the bulk of my living from live touring, playing for 80-1500 people a night, 200-300 nights a year, doing my own show. I spend hours each week doing press, writing articles, making sure my website tour information is up to date.

Why? Because all of that gives me exposure to an audience that might not come otherwise. So when someone writes and tells me they came to my show because they’d downloaded a song and gotten curious, I am thrilled!

Who gets hurt by free downloads? Save a handful of super-successes like Celine Dion, none of us. We only get helped.

But not to hear Congress tell it. Senator Fritz Hollings, chairman of the Senate Commerce Committee studying this, said “When Congress sits idly by in the face of these [file-sharing] activities, we essentially sanction the Internet as a haven for thievery”, then went on to charge “over 10 million people” with stealing. [Steven Levy, Newsweek 3/11/02]. That’s what we think of consumers – they’re thieves, out to get something for nothing.

Baloney. Most consumers have no problem paying for entertainment. One has only to look at the success of and the few other websites offering downloadable books and music at reasonable prices to understand that. If the music industry had a shred of sense, they’d have addressed this problem seven years ago, when people like Michael Camp were trying to obtain legitimate licenses for music online. Instead, the industry-wide attitude was “It’ll go away”. That’s the same attitude CBS Records had about rock ‘n’ roll when Mitch Miller was head of A&R. (And you wondered why they passed on The Beatles and The Rolling Stones.)

I don’t blame the RIAA for Senator Holling’s attitude. They are, after all, the Recording Industry Association of America, formed so the labels would have a lobbying group in Washington. (In other words, they’re permitted to make contributions to politicians and their parties.) But given that our industry’s success is based on communication, the industry response to the Internet has been abysmal. Statements like the one above do nothing to help the cause.

Of course, communication has always been the artist’s job, not the executives’. That’s why it’s so scary when people like current NARAS president Michael Greene begin using shows like the Grammy Awards to drive their point home.

Grammy viewership hit a six-year low in 2002. Personally, I found the program so scintillating that it made me long for Rob Lowe dancing with Snow White, which at least was so bad that it was entertaining. Moves like the ridiculous Elton John-Eminem duet did little to make people want to watch again the next year. And we’re not going to go into the Los Angeles Times’ Pulitzer Prize-winning series on Greene and NARAS, where they pointed out that NARAS’ foundation, MusiCares, has spent less than 10% of its revenue on disbursing emergency funds for people in the music industry (its primary purpose), or that Greene recorded his own album, pitched it to record executives while discussing Grammy business, then negotiated a $250,000 contract with Mercury Records for it (later withdrawn after the public flap). Or that NARAS quietly paid out at least $650,000 to settle a sexual harassment suit against him, a portion of which the non-profit Academy paid. Or that he’s paid two million dollars a year, along with “perks” like his million-dollar country club membership and a Mercedes. (Though it does make one wonder when he last entered a record store and bought something with his own hard-earned money.)

Let’s just note that in his Grammy Awards speech, he told the viewing audience that NARAS and RIAA were, in large part, taking their stance to protect artists. Greene had hired three teenagers to spend a couple of days doing nothing but downloading, and they managed to download “6,000 songs”. Come on. For free “front-row seats” at the Grammys and an appearance on national television, I’d download twice that amount!

But…who’s got time to download that many songs? Does Greene really think people out there are spending twelve hours a day downloading our music? If they are, they must be starving to death, because they’re not making a living or going to school. And how many of us can afford a T-1 line, which is what Greene’s “consumer sample” were permitted to use?

This sort of thing is indicative of the way statistics and information are being tossed around. It’s dreadful to think that consumers are being asked to take responsibility for the industry’s problems, which have been around far longer than the Internet. It’s even worse to think that the consumer is being told they are charged with protecting us, the artists, when our own industry squanders the dollars we earn on waste and personal vendettas.

Greene went on to say that “Many of the nominees here tonight, especially the new, less-established artists, are in immediate danger of being marginalized out of our business.” Right. Any “new” artist who manages to make the Grammys has millions of dollars in record company money behind them, I can guarantee that. The “real” new artists aren’t people you’re going to see on national television, or hear on most radio. They’re people you’ll hear because someone gave you a disc, or they opened at a show you attended, or they were lucky enough to be featured on NPR or another program still open to playing records that aren’t already hits.

As to artists being “marginalized out of our business,” the only people being marginalized out are the employees of our Enron-minded record companies, who are being fired in droves because the higher-ups are incompetent.

And it’s difficult to convince an educated audience that artists and record labels are about to go down the drain because they, the consumer, are downloading music. Particularly when they’re paying $50-$125 apiece for concert tickets, and $15.99 for a new CD they know costs less than a couple of dollars to manufacture and distribute.

I suspect Greene thinks of downloaders as the equivalent of an old-style television drug dealer, lurking next to playgrounds, wearing big coats and whipping them open for wide-eyed children, who then purchase black market CD’s at generous prices.

What’s the new music industry byword? Encryption. Record companies like Sony and BMG are going to make sure no one can copy CDs, even for their own personal use, or download them for free. Brilliant, except that it flouts previous court decisions about blank cassettes, blank videotapes, etc. And it pisses people off.

How many of you know that many car makers are now manufacturing all their CD players to also play DVD’s? or that part of the encryption record companies are using doesn’t allow your store-bought CD to be played on a DVD player, because that’s the same technology as your computer? And if you’ve had trouble playing your own self-recorded copy of O Brother Where Art Thou in the car, it’s because of this lunacy.

The industry’s answer is to put on the label: “This audio CD is protected against unauthorized copying. It is designed to play in standard audio CD players and computers running Windows O/S; however, playback problems may be experienced. If you experience such problems, return this disc for a refund.”

Now I ask you. After three or four experiences like that, shlepping to the store to buy it, then shlepping back to return it (and you still don’t have your music), who’s going to bother buying CD’s?

The industry has been complaining for years about the stranglehold the middle-man has on their dollars, yet they wish to do nothing to offend those middle-men. BMG, for instance, has a strict policy for artists buying their own CDs to sell at concerts – they charge the artist $11 per CD. They know very well that most of us lose money if we have to pay that much; the point is to keep the big record stores happy by ensuring sales go to them. What actually happens is no sales to us or the stores.

NARAS and RIAA are moaning about the little mom & pop stores being shoved out of business; no one worked harder to shove them out than our own industry, which greeted every new Tower or mega-music store with glee, and offered steep discounts to Target and WalMart et al for stocking CDs. The Internet has zero to do with store closings and lowered sales.

And for those of us with major label contracts who want some of our music available for free downloading… well, the record companies own our masters, our outtakes, even our demos, and they won’t allow it. Furthermore, they own our voices for the duration of the contract, so we can’t even post a live track for downloading!

If you think about it, the music industry should be rejoicing at this new technological advance, not fighting it! Here’s a fool-proof way to deliver music to millions who might otherwise never purchase a CD in a store. The cross-marketing opportunities are unbelievable. Delivery is instantaneous, costs are minimal, shipping non-existant…a staggering vehicle for higher earnings and lower costs. Instead, they’re running around like chickens with their heads cut off, bleeding on everyone and making no sense.

As an alternative to encrypting everything, and tying up money for years (potentially decades) fighting consumer suits demanding their first amendment rights be protected (which suits have, in the end, always gone to the consumer, as witness the availability of blank and unencrypted VHS tapes and cassettes), why not take a tip from book publishers and writers?

The Baen Free Library, at , is one success story. The Science Fiction Writer’s Association, at, is another. The SFWA site is one of the best out there for hands-on advice to writers, featuring in depth articles about everything from agent and publisher scams, to a continuously updated series of reports on various intellectual property issues. More important, many of the science fiction writers it represents have been heavily involved in the Internet since its inception.

Each year, when the science fiction community votes for the Hugo Awards (voted on by readers) and the Nebula Awards (their equivalent of the Grammys, voted on by professionals), most of the works nominated are put on the site in their entirety, allowing voters and non-voters the opportunity to peruse them. Free. If you are a member or associate member of SFWA, you have access to even more works. The site is also full of links to members’ own web pages and on-line stories, even when they aren’t nominated for anything. Reading this material, again for free, allows browsers to figure out which writers they want to find more of – and buy their books.

Wouldn’t it be nice if all the records nominated for awards each year were available for free downloading, even if it were only the winners? People who hadn’t bought the albums might actually listen to the singles, then go out and purchase the records.

I have no objection to Greene et al trying to protect the record labels, who are the ones fomenting this hysteria. RIAA is funded by the labels. NARAS is supported by them. It stands to reason.

However, I object violently to the pretense that they are in any way doing this for our benefit – and you should be wary, too. If they really wanted to do something for the great majority of artists, who eke out a living against all odds, they could tackle some of the real issues facing us:

  • The normal industry contract is for seven albums, with no end date, which would be considered at best indentured servitude (and at worst slavery) in any other business. In fact, it would be illegal.
  • A label can shelve your project, then extend your contract by one more album because what you turned in was “commercially or artistically unacceptable”. They alone determine that criteria.
  • Singer-songwriters have to accept the “Controlled Composition Clause” (which dictates that they’ll be paid only 75% of the rates set by Congress in publishing royalties) for any major or subsidiary label recording contract, or lose the contract. Simply put, the clause demanded by the labels provides that a) if you write your own songs, you will only be paid 3/4 of what Congress has told the record companies they must pay you, and b) if you co-write, you will use your “best efforts” to ensure that other songwriters accept the 75% rate as well. If your co-writer and co-publisher refuse, you must agree to make up the difference out of your share.
  • Congressionally set writer/publisher royalties have risen from their 1960’s high (2 cents per side) to a munificent 8 cents.
  • Many of us began in the 50’s and 60’s; our records are still in release, and we’re still being paid royalty rates of 2% (if anything) on them.
  • If we’re not songwriters, and not hugely successful commercially (as in platinum-plus), we don’t make a dime off our recordings. Recording industry accounting procedures are right up there with films.
  • Worse yet, when records go out-of-print, we don’t get them back! We can’t even take them to another company. Careers have been deliberately killed in this manner, with the record company refusing to release product or allow the artist to take it somewhere else. And you’re stuck there forever if they want you to be.
  • And if they do let you leave, because the record label “owns” your voice for the duration of the contract, you can’t go somewhere else and re-record those same songs they turned down.
  • And because of the re-record provision, even after your contract is over, you can’t record those songs for someone else for years, and sometimes decades.
  • Last but not least, America is the only country I am aware of that pays no live performance royalties to songwriters. In Europe, Japan, Australia, when you finish a show, you turn your set list in to the promoter, who files it with the appropriate organization, and then pays a small royalty per song to the writer. It costs the singer nothing, the rates are based on venue size, and it ensures that writers whose songs no longer get airplay, but are still performed widely, can continue receiving the benefit from those songs.

We artists should be speaking up, and Congress should be listening. At this point they’re only hearing from multi-platinum acts. What about someone like Ani Difranco, one of the most trusted voices in college entertainment today? What about those of us who live most of our lives outside the big corporate system, and who might have very different views on the subject?

There is zero evidence that material available for free online downloading is financially harming anyone. In fact, most of the hard evidence is to the contrary.

Greene and the RIAA are correct in one thing – these are times of great change in our industry. But at a time when there are arguably only four record labels left in America (Sony, AOL/Time/Warner, Universal, BMG – and where is the RICO act when we need it?)… when entire genres are glorifying the gangster mentality and losing their biggest voices to violence…when executives change positions as often as Zsa Zsa Gabor changed clothes, and “A&R” has become a euphemism for “Absent & Redundant”… well, we have other things to worry about.

It’s absurd for us, as artists, to sanction – or countenance – the shutting down of something like this. It’s sheer stupidity to rejoice at the Napster decision. Short-sighted, and ignorant.

Free exposure is practically a thing of the past for entertainers. Getting your record played at radio costs more money than most of us dream of ever earning. Free downloading gives a chance to every do-it-yourselfer out there. Every act that can’t get signed to a major label, for whatever reason, can reach literally millions of new listeners, enticing them to buy the CD and come to the concerts. Where else can a new act, or one that doesn’t have a label deal, get that kind of exposure?

Please note that I am not advocating indiscriminate downloading without the artist’s permission. I am not saying copyrights are meaningless. The way I look at it, if I earn the money to build or buy my own home, I shouldn’t have to let other people squat there just because it exists. I make a large portion of my income from royalties, and I have no qualms about that. But I have serious qualms about the heavy-handed reactions and nonsense currently coming from my own industry about this subject!

I am objecting to the RIAA spin that they are doing this to protect “the artists”, and make us more money. I am annoyed that so many records I once owned are out of print, and the only place I could find them was Napster. Most of all, I’d like to see an end to the hysteria that causes a group like RIAA to spend over 45 million dollars in 2001 lobbying “on our behalf”, when every record company out there is complaining that they have no money.

We’ll turn into Microsoft if we’re not careful, folks, insisting that any household wanting an extra copy for the car, the kids, or the portable CD player, has to go out and “license” multiple copies.

As artists, we have the ear of the masses. We have the trust of the masses. By speaking out in our concerts and in the press, we can do a great deal to damp this hysteria, and put the blame for the sad state of our industry right back where it belongs – in the laps of record companies, radio programmers, and our own apparent inability to organize ourselves in order to better our own lives – and those of our fans.

If we don’t take the reins, no one will., BMG Records, Chicago Tribune,, Congressional Record,,,, Newsweek,,, personal communications. This article has been revised to ensure factual accuracy.

Read Janis’ follow up to this article: “Fallout: A Follow Up To The Internet Debacle.”

Later notes:

Shortly after this article was turned in, Michael Greene resigned as president of NARAS. Shortly after the follow-up article, “Fallout”, was published, iTunes was announced. The success of iTunes has more than justified the stance taken in both articles.

You are welcome to post this article on any cooperating website, or in any print magazine, although we request that you include a link directed to and give Janis Ian writer’s credit!

Want to know how your politicians are voting on these issues? Go to

Copyright by Rude Girl Publishing, All Rights Reserved.

return to The Performing Songwriter Articles

Law And Order In Canada – Robert Pickton, The Vancouver PD, And The RCMP

Oh, dear, where to begin. First off, a friend of mine knows Robert Pickton’s brother, so there’s three degrees of separation between me, and the worst serial killer in Canadian History. Kind of scary, isn’t it?

Robert ‘Willie’ Pickton is a bad odor, that just won’t go away. Even now, when he is behind bars in a Federal Penitentiary, he still makes the news. This time in the Royal Canadian Mounted Police’s own online magazine RCMP Gazette published an article (PDF Warning) – an article that had people so upset that it was pulled from the online edition almost immediately, though the title of the article remains on the front page. Luckily the RCMP aren’t as efficient as Google, a quick search turned up several websites which had mirrored the article, and of course they are mirrored in Google’s cache as well.

The reason for the upset? The article is written as if the case was a success for Canadian policing – when it took the cops FOURTEEN YEARS just to notice that something was going on, and many years further to arrest Robert Picton, even though he had been pointed out to them years before by an ex-employee as a suspect. And he had been charged in 1997 with attempted murder of a sex trade worker, but for some reason the charges were dropped! Why, we don’t know, even now, nor why the cops appear to have ignored him.

Most Canadians I’ve talked to consider the Picton case to be an indictment on Canadian policing. While the various police forces involved have come up with many excuses, the biggest parts of the problem appear to be:

1) Institutional Racism on the part of the police (many of the victims were natives)

2) Contempt for lower class members of society (all of the victims were prostitutes and/or drug addicts)

Indeed calls for an open inquiry are still being made. Some work has already been done, but at least one report which was supposed to have been done by the RCMP has not been made publicly available. Many people close to the case (including some of the families of the victims), Native Rights Groups and others groups interested in social justice believe that a whitewash is in the works. And I have to admit that the longer it takes for an inquiry to happen, the more that it looks like they are right.

Something smells, and it’s not Picton’s Pig Farm.

My thanks to Wayne Leng of Missing People.Net for his work in archiving information on the Picton case.


Wayne Borean

Saturday August 28, 2010

Further Reading:

Tru TV Crime Library Article about Robert ‘Willie’ Picton

On The Farm: Robert William Pickton And The Tragic Story Of Vancouver’s Missing Women by Stevie Cameron (Indigo Books)

Missing and Murdered Women Blog – copy of ‘Snaring Picton‘ originally published in RCMP Gazette

Picton Tape Given to Police in 1998 – from Missing People.NET

Meet the man who alerted police about Robert Pickton more than three years before serial killer’s arrest – Times Colonist

VPD learned nothing from Pickton: Let’s have inquiry – The Province

Missing People.NET – Wayne Leng’s site about Picton – Twitter @Renegade98

The Death Of The Fossil Fuel Companys Part Deux

Back on May 30th I wrote an article titled ‘The Death Of The Fossil Fuel Companies – Sell Your Stock Now While It’s Still Worth Something‘, which caused a bit of an uproar. Those who are heavily invested in Fossil Fuel company stocks were less than happy with me. Many people were still willing to listen though, in part because of the Deepwater Horizon oil spill, and in part because the economics make damned good sense. So I’ve been planning a follow up, and here it is.

First, let’s consider fourteen year old Ashton Stark. Ashton converted his father’s 1972 Volkswagen Beetle into an electric. The technology used is pretty primitive (in effect it’s a glorified golf cart), but it’s estimated to be able to travel 50 miles on $0.50 worth of electricity. Nicely done, Ashton!

Second, let’s consider the oil spill. It took three months to cap, and the cap may or may not hold. Exactly how much damage has been done to the environment of the Gulf of Mexico may not be known for decades. Pumping less oil is one way to limit oil spills…

Third, General Motors has announced that they plan to produce 45,000 Chevy Volt extended range electric vehicles in 2012, up from the original plans to produce 30,000 cars. However the number of cars General Motors plans to produce is small compared to Nissan’s plans, the Nissan plant in Smyrna Georgia will be capable of producing 150,000 cars per year, for only that one plant!

Fourth, the Automotive X-Prize is encouraging some really radical thinking about what an automobile needs to be. While some of these designs don’t look all that practical, the research and development can be reused on more practical designs. Or maybe more insane designs, Neil Young’s LincVolt combines excellent fuel economy with recycling, and retro style. Heck, watch the video, you’ll see.

So what does this all mean? Among other things, it means that the Conservative Government’s help in funding the tar sands project is probably a huge waste of taxpayer money. Also the Government of the Province of Alberta is spending a half million per year on lobbying in Washington, and is running a large deficit since the price of oil dropped from it’s high point. The Government of Alberta collects a fee for every barrel of oil pumped in the province, and the drop back to more rational pricing has hit the province really hard. Oh, yes, and an energy industry executive with strong ties to the Tar Sands is out Clean Energy Envoy to the USA. You really have to wonder about these folks in Ottawa – what are they smoking!

All of this means that political satire in Canada is doing quite well. Feel free to tar Prime Minister Stephen Harper, and Opposition Leader Michael Ignatief in the game ‘Tar Nation‘ (Flash Required). My thanks to the Toronto Sun for writing about the game.

So we have the auto companies now realizing that there’s big money to be made out of electric cars, and the Governments of the Province of Alberta and the Dominion of Canada throwing away money developing the dirtiest energy source that they can.

Sheesh. I’m proud of my country, but we have some damned stupid politicians.

And on a final note, The Gates Foundation is investing in BP and Exxon Mobil. A charity that is supposed to be investing in the future, buys a stake in the companies that are ruining the planet? Good work Bill.


Wayne Borean

Friday August 27, 2010

Lies Of Omission – James Gannon Doesn't Tell You All The Details

Let’s take a hypothetical situation – what if I were to sit down and write a well researched article on why installing emission control devices on diesel powered non-road vehicles was a good idea? And I didn’t tell you that up until my body decided to revolt, I had spent ten years working in the industry, and was in effect being paid to write it? You wouldn’t be happy with me once you learned the background, would you?

So what about James Gannon? James recently posted an article on Facebook, in which he argues for stronger digital locks. James does not mention that he works at McCarthy Tétrault LLP, a law firm that does work for The Canadian Recording Industry Association, which has a vested interest in digital locks.

How do I know this? Easy. James Gannon works with Barry Sookman, who is a registered lobbyist for the CRIA (covered earlier in this article). In fact James is quoted as having assisted Barry in writing a submission to the Canadian Copyright Consultation, which Barry did while he was a paid lobbyist for the CRIA.

This is called a ‘Lie of Omission‘, to quote Wikipedia:

Lying by omission

One lies by omission by omitting an important fact, deliberately leaving another person with a misconception. Lying by omission includes failures to correct pre-existing misconceptions. An example is when the seller of a car declares it has been serviced regularly but does not tell that a fault was reported at the last service. Propaganda is an example of lying by omission.

The fact that James Gannon earns his living working for a law firm, which represents the CRIA is an important fact. one that could change the reader’s view of his argument.

As Marcellus says in Hamlet, Something is rotten in the State of Denmark. I think that Canada needs to adopt a similar regulation to the one that the American FTC adopted, requiring those who are being paid for their writing, to disclose the connection. Don’t you?


Wayne Borean

Friday August 27, 2010

Open Bytes article – 'DCC, Bittorrent and Usenet – Is Bittorrent so great?' – is Tim wrong?

Tim over at Open Bytes has a new article, DCC, Bittorrent and Usenet – Is Bittorrent so great?, one part of which really caught my attention:

Since the vast magority(sic) of file-sharing on a p2p network is infringing copyright

Now, here’s the question. Can anyone prove this? Does anyone have a solid, peer reviewed study, that gives figures proving that the majority of file sharing is infringing copyright? To the best of my knowledge, no such study has yet been carried out. There have been studies carried out by the Business Software Alliance, and other industry bodies, but they have an axe to grind, and because of this their figures are not believable (for instance in one study, they assumed that every computer ever made had a copy of Microsoft Office, even those which were incapable of running it, and made no provisions for Free Software alternatives such as KOffice and Open Office).

Now I personally suspect that Tim is correct, and that over 50% of the sharing is copyright infringing. However the total lack of proof from an unbiased observer bothers me intensely. The usual reason that there isn’t any proof from an unbiased observer, is that the proof doesn’t exist, because the conclusion is incorrect.

That said, a quick perusal of the listings on ‘The Pirate Bay‘ would seem to offer proof that the statement is correct, however there are thousands of other torrent sites, and there are also the Peer to Peer networks such as Gnutella, never mind IRC, Usenet, Direct Download sites such as RapidShare, and all of the other possible ways to transfer files. No one has ever done a proper study taking into account all of the alternatives, so making a blanket statement that the majority of files are infringing is a dangerous thing to do. The majority of files may be infringing, however at present this has not been proven.

Also the Free Software, Open Source Software, and Creative Commons alternatives need to be considered. Ten years ago I knew a lot of people who ran illegal copies of Microsoft Office. Today I don’t know anyone who does, they are all running Open Office, KOffice, or Gnome Office. Why pirate Microsoft Office, when there are free alternatives, alternatives which offer superior performance? Ten years ago it was extremely difficult to produce and market your own videos, today it’s a lot easier, so people like the incomparable Taunya Gren (disclosure, she is a friend of the family) are able to produce things like the video series ‘Raising Kayn‘ on a small budget, and made it look great. Taunya lives in Utah, her sound track engineer lives in England, they collaborate over the net, something that would have been difficult even ten years ago, and impossible twenty years ago.

I think that it is probable that online copyright infringement is actually dropping. No, I can’t prove this, no more than anyone can prove that online copyright infringement is the majority of the the files transferred on Peer to Peer networks. But while I can’t prove it, I can point to things like YouTube, where you can find a huge amount of amateur video (I’m addicted to funny cat videos myself). And there’s people like Tom Smith, who are now able to make a living from music, using the internet to connect with fans (disclosure, I’ve known Tom for nearly twenty years). Other friends are posting their newest novels online, I suggest you check out Shirley Meier’s ‘Eclipse Court‘, and Karen Wehrstein’s ‘Chevenga Lives‘, both of which are well written (disclosure, I’ve known both Shirley and Karen for a long time – nearly twenty-five years now).

It is unlikely that online copyright infringement would ever stop, no matter what was done, however it’s like smoking cigarettes. Smoking cigarettes was once socially acceptable. It no longer is socially acceptable. Or drunk driving – at one time everyone did it, now it’s so socially unacceptable that very few do so anymore.

The curious thing is that all of the laws which have been enacted, appear to have had virtually no effect on online copyright infringement. What has had a huge effect was legal options. People love to show their appreciation for value, especially when they can show that appreciation directly to the artist, or software developer.


Wayne Borean

Friday August 27, 2010