Prince: So Close, Yet So Far

from the so-right,-but-so-wrong dept

The musician Prince has been quite fascinating to follow over the years from a business model perspective. He has aggressively experimented, and for a while seemed to be the perfect example of a musician who understood how to embrace new business models allowed by the internet. He was creating tons of new music, some of which he was giving away free in order to promote scarce aspects of his business model, such as concerts (he sold out 21 straight concerts in London after giving away his latest CD totally free), while also embracing the idea of getting people to pay him upfront to create music. He also experimented with things like having companies sponsor him, setting up a subscription fan club and even owning a dance club in Vegas where he would perform regularly. All were perfect examples of the sorts of business models that we talk about all the time. And the model was clearly quite successful for Prince, helping him to earn quite a bit of money off of those scarcities.

Yet, about a year ago, we all began to realize that, as successful as Prince had been in embracing these new business models, he had yet to realize why they worked, and started to attack the very tools that made them so successful. For example, he sued YouTube, eBay and The Pirate Bay. Then he went after fan sites and even a bunch of musicians who made a tribute album for his birthday. And, of course, he famously was involved in a few cases of demanding people take down YouTube videos that just happen to have Prince music playing in the background.

The problem is that he while he's benefited from these tools that made various scarcities (the creation of new music, concerts, etc.) more valuable, he seems to overvalue the content and undervalue (extremely) those tools. Thus, he seems totally against the idea of anyone else being able to profit from the music, even if it means he profits more from it. It's a common mistake, but Prince seems to have taken it to extremes. He's benefited so much from these models -- and in misunderstanding them, he risks destroying his legacy. He could have been a pioneer adored by fans, like Trent Reznor -- but, instead, he's been taking a very anti-fan approach. While there are still plenty of diehards, his views have turned off many former fans.

It's tragic, too, because you read interviews like one he just did where he expresses his disdain for the internet these days, and you just wish he would make the connection. He's right about music, by itself, not being a good product to sell online, but then misses the point that this isn't a bad thing if you use it (as he himself has done repeatedly) to drive more business to other parts of your business model:

"Today, it's not realistic to expect to put out new music and profit from it. There's no point in trying to put new music out there and keep it from being (exploited)."

And that's why you build business models (again, as he himself has done) where the musician benefits from that "exploitation."

It's really too bad that such a pioneer doesn't even realize how he was a pioneer, and is now trashing part of what made him so successful.

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Judge Says Copyright Holders Must Consider Fair Use Before Sending DMCA Takedowns

from the this-isn't-over-just-yet... dept

Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn't actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they've pretty much aligned their talking points on fair use. You'll hear it repeated again and again: fair use is "just a defense, not a right." This is a bit of semantics that basically tries to minimize what fair use represents and what it's designed to allow. The argument, effectively, is that there's no "right" to fair use, and there's no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.

This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute "fair use" without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice -- which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice -- mainly because fair use is just a defense, not a right.

The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I'm a bit surprised by the decision. While I agree that it makes sense, it wasn't at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we're pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that "fair use is a defense, not a right" loses a lot of its bite. The court effectively said the opposite:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright.

The judge also noted that it wasn't any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it's infringing in the first place:

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

All in all, this is a definite win for supporters of fair use -- and a definite loss for those who trot out the "defense, not a right" line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used "bad faith" in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn't mean that sending the takedown was done in bad faith.

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Universal Says It Can Ignore Fair Use In DMCA Takedowns

from the and-it-might-be-right dept

Last year, we wrote about the case where Universal Music sent a takedown notice to YouTube when a woman posted a short (29-second) video of her toddler running around with a Prince song (barely audible) in the background. Universal backed down when challenged on the takedown notice, but the woman (with the help of the EFF) hit back and have sued Universal Music for a false takedown.

The DMCA has provisions for a copyright holder to assert ownership, at which point the service provider needs to takedown the content. Whoever posted the content can protest that the content was legally posted -- which is exactly what happened in this case. However, the DMCA also says that filing a false DMCA notice opens one up to damages from those whose content was taken down. This was in an effort to discourage false DMCA notices. This provision was used last year against Viacom for its false takedowns on satirical clips of the Colbert Report.

The question then, is whether or not filing a takedown notice on content that is used in a way consistent with "fair use" is a misuse or not. Universal Music's claim is that it is not reasonable for the copyright holder to take fair use into consideration before sending a takedown notice. At a first pass, it sounds like the judge agrees.

As ridiculous as this whole situation is, the judge and Universal Music may be correct under the existing law. There isn't anything in the law that says the copyright holder needs to take into account the user's defenses. It just says they need to be the legitimate copyright holder (which Universal Music is).

The real problem, then, in this story isn't Universal Music's actions (though Universal was acting in a rather heavy handed manner in getting the video taken down), but with the DMCA itself that forces a takedown before the user gets to respond with a defense. It's this "notice and takedown" provision that's a problem. If, instead, we had a "notice and notice" provision that allowed the user to respond before the takedown occurred, it would be a lot more reasonable and would avoid ridiculous situations such as this one.

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Prince Sues Musicians For Making A Tribute Album For His Birthday

from the happy-birthday! dept

It's been really disappointing watching how Prince has squandered what had been seen as a enlightened view of how music works in this day and age. Instead of continuing to embrace that, and use it to his advantage, Prince has become fantastically anti-fan, and day-by-day seems to be destroying his reputation. It started with threatening fan sites, quickly followed up by lawsuits against YouTube, eBay and the Pirate Bay, and more recently has involved a bizarre and ill-advised strategy of taking down YouTube videos that he probably had no right to take down.

The latest case involves fifty Norwegian musicians, who teamed up with a Norwegian record label to create what they thought was a nice 50th birthday present for Prince: a "tribute" album with 81 covers of Prince songs. They figured that it would be a nice gesture to send Prince a copy, and contacted his representatives to figure out where to send a copy. What they didn't expect was for Prince, instead, to turn around and sue the label and all fifty musicians. He's also demanding that all copies of the album be destroyed.

There is a question of compulsory licenses here -- as Norway requires about $0.10/song, and with 81 songs, that's about $8 per album. The label (potentially incorrectly) believed that since it wasn't making any money on the album, it didn't need to pay. Even if the album ran afoul of copyright laws, this response from Prince is just dumb. Here are a group of musicians who are paying tribute to him, and he sues them. What better way to piss off a group of truly devoted fans?

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Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat

from the wait-a-second... dept

We were just discussing how copyright has been stretched and twisted so many times that it really just isn't designed properly to handle internet communications -- and a good case in point may be the funny little spat we covered a few weeks back between Prince and Radiohead. If you don't recall, Prince performed a cover of a Radiohead song at a concert. Someone in the audience videotaped it and put the video on YouTube. Prince's representatives demanded that the content be taken down under a DMCA request -- raising all sorts of questions. After all, Prince didn't own the copyright on the song. That's owned by Radiohead, whose lead singer wanted the video back online. Prince didn't own the copyright to the video either, since he didn't take it. So how could he use the DMCA to take down the video?

But, it's not that simple, apparently. As Ethan Ackerman details, as lawyers began to think about the situation, the more confused they got, noting that maybe there was a right under anti-bootlegging laws. Only, then things got more confusing, because it turns out that anti-bootlegging laws aren't actually a part of the copyright act (though it does fall under the same "title" just to add to the confusion), and the DMCA (under which the takedown occurred) only applies to copyright law.

However, again, we're left in a situation where the "law" is hardly clear at all, and even those who follow the space were somewhat confused over whether or not Prince had any sort of legal standing here. A law is not useful if the boundaries of that law are not clear, and if someone has no clue if their actions go against the law. In the internet era, copyright certainly falls under that category of laws in which it is no longer clear what is and is not legal -- and that should be seen as a problem.

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Prince And Radiohead Fight Over YouTube Song

from the this-is-what-it's-come-to? dept

For years, Prince was the poster child for "getting" the internet and new media distribution opportunities. He experimented with a variety of different creative business models that suggested he got how the economics of music worked these days. It was working too -- with his efforts to give away his music helping him sell out concert after concert around the world. But then something changed, and Prince went ballistic, suing YouTube, The Pirate Bay and eBay and even threatening fan sites while demanding that even videos with tiny snippets of Prince music in the background get taken offline. The whole thing is quite surprising, and if he keeps this up, he's risking taking all that goodwill he built up for years, and turning himself into another Metallica. Becoming anti-fan is never a good idea.

The latest story, though, has a twist. Prince apparently did a cover of a Radiohead song at a recent concert. Someone filmed it and put the video on YouTube. Given his newfound hatred for YouTube, Prince demanded that the song be taken down. And here's where it gets interesting: Radiohead's Thom Yorke is demanding that it be put back online, noting that he owns the copyright on the song: "Really? He's blocked it?... Well, tell him to unblock it. It's our ... song." Of course, as that LA Times report notes, in true Streisand Effect fashion, the effort to take down the song has only driven much more interest in people trying to find the song. If Prince weren't suing so many people, you might even think he was canny enough to have done this on purpose as a marketing campaign.

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Judge Dismisses DMCA-Abuse Lawsuit Over Video Of Baby Dancing To Prince

from the too-bad dept

Last summer, we wrote about the EFF suing Universal Music for sending a DMCA takedown notice to YouTube over a 30-second home video of a baby dancing to some barely audible music by Prince. The EFF claimed that this was an abuse of the DMCA, as the use of the music was clearly fair use. Unfortunately, though, a judge has dismissed the case (update: to be more specific, he dismissed portions with leave to amend), arguing that the EFF did not make a case as to why this was self-evident fair use, and noting differences compared to other abuses of the DMCA. The EFF had also asked for a clear ruling stating that the video did not infringe on Universal's copyright, but the judge declined to do so, noting that Universal Music hasn't indicated any plans to actually sue (it just sent the takedown notice). The EFF has already refiled a new complaint to make the claims clearer, but so far, this case hasn't gone all that well. However, the video itself is back online:

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Prince Takes Down Another Video With His Music Playing In The Background

from the hasn't-quite-learned-his-lesson dept

Over the summer, there was a flurry of press coverage over the fact that, with the help of the EFF, a mother was suing Universal Music for forcing a short video she had made offline. The 29-second video was of her kid dancing to some Prince music that was playing in the background. We were a bit surprised by this, due to plenty of stories around that time about how Prince really "got" the internet. We had thought that maybe this was just a move by Universal Music, rather than having anything to do with Prince himself. Since then, of course, Prince has been much more aggressive in forcing fan sites to take down content -- though, it still seems pretty clear that the original video was fair use. You would think that all of the negative publicity surrounding that case would have made it over to the UK, but apparently not. The Agitator points us to a story that Prince's representatives have forced a UK taxi driver to take some videos off of YouTube. The taxi driver had filmed a few short videos while he was driving his cab and uploaded them to YouTube. During at least one of the videos, there was some Prince music playing in the background on the cab's radio. And, that, apparently, is enough for Prince's representatives to claim copyright infringement and get the video taken offline. Can anyone explain how a short clip like this, with the music playing on the radio in the background on an amateur film with no commercial connection at all, is not fair use? But, more importantly, can anyone explain how (even if it is Prince's right), this makes sense for Prince? He's clearly not losing any money from this video being online. The only thing that might happen is more people hear that song and perhaps get them interested in Prince's music.

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Prince Threatens Fan Sites; Apparently He Didn't Get The Web As Much As We Thought

from the well-that's-disappointing dept

Over the last few years, there had been all sorts of indications that pop star Prince had actually figured out the economics that drive music. He'd run many different experiments on new business models, many of which involved embracing the basic economics we've discussed around here. He focused on performances and came up with ways to fund his creativity through new means. He recognized that his older catalog was promotional for all sorts of other things, and focused on constantly creating new music. Even the NY Times this summer had a detailed explanation for how Prince was embracing the economics of music to go beyond what others were doing. And then it all came crashing down. Prince sued sites like YouTube, eBay and the Pirate Bay for copyright infringement, focusing on the service provider rather than those who were actually infringing on the copyrights. While we hoped it was just a simple misunderstanding, it appears not. Prince has taken this campaign well beyond that, and is now threatening a bunch of fan sites for copyright infringement because they have photos of him and his album covers on their site. This is the type of thing we had thought went out of style in the late 90s when bands realized that fan sites are clearly only about helping you get more fans. It's quite disappointing that someone who seemed so close to figuring it all out has gone 180 degrees and passed the mantle of understanding music economics on to folks like Trent Reznor and Radiohead.

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Prince Misses The Point: Sues YouTube, eBay, Pirate Bay For Copyright Infringement

from the and-it-looked-like-he-was-getting-somewhere dept

For many years it had seemed like Prince was one of the major music industry stars who actually understood the new business models made possible by the internet, and how those could be leveraged without wasting time on worrying about those who were making unauthorized copies. Unfortunately, for all his innovation in the space, it looks like he, too, has fallen victim to trying to sue those who are out there promoting his works. Prince had experimented widely with a variety of innovations in making, distributing and promoting music -- including his recent offer giving away his latest CD for free with newspapers. He'd also done a number of other promotions, all designed to push more people to his concerts and events where he could make even more money. That's why it's both surprising and disappointing to find out that Prince is now going to the other extreme and is suing YouTube, eBay and the Pirate Bay for making his works available.

There are quite a few things that are problematic about this lawsuit -- with the first one still being that he's suing the wrong parties. The sites he's suing are all the platforms which others are using for distribution. They're not involved in the content at all, and if he wants to sue, he should be suing those who are uploading his content. However, the much more important issue is how backwards this is and how it goes against nearly every other part of his strategy. Nearly every other part of Prince's strategy had seemed to be focused on the simple idea that the more his music got out there, the more ways there were for him to make money -- whether it be from more people wanting to see him in concert or getting others (sponsors, partners, even fans) to pay him upfront to create his next group of songs so that he doesn't need to worry about monetizing the music after it's been produced. These are strategies that make sense, and actually become even more valuable when his music is being heavily promoted online for free by his biggest fans. This kind of strategy backfires when you try to also maintain strict copyright control. For someone who had been so creative in figuring out new business models that don't require limiting fans via copyright, it's disappointing to see Prince go in the opposite direction -- potentially harming much of the good will he's built up.

In the meantime, it's looking like Trent Reznor may quickly be taking away the baton as a well-known musician who is experimenting with cool new models designed to get more music out there and then providing incentives to make money elsewhere. Reznor is now being quoted as telling fans that they should be downloading his music for free from his own site, rather than wasting money on buying counterfeit CDs.

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A Detailed Look At How Prince Embraces New Music Distribution Strategies

from the keep-it-up dept

Last month, we wrote about how the musician Prince had been pissing off a bunch of music retailers in the UK by having a newspaper give away a free copy of his latest album with every issue. The New York Times has a great article looking at this, and giving a more detailed explanation of Prince's strategy for music distribution that supports a lot of what we talk about here. Basically, Prince produces a ton of new music and is constantly in the studio coming up with more music, but he then uses that music in a variety of ways to generate revenue from all different areas -- often recognizing that the music helps make a ton of other aspects of his business more valuable. He also seems to realize a key point in understanding the difference between music that hasn't yet been created (which is scarce) and music that has been created (which is abundant). As such, he has done a number of deals that getting someone to pay him upfront to create music (you can get people to pay for something that's scarce) but then giving that content away for free. In the latest case, the newspaper is paying for the album, because it's going to help get them a lot more attention for their newspaper. This is the same thing that's actually happening in China as well, where piracy is rampant, but there's plenty of new music -- because sponsors are willing to pay to have it created. Either way, Prince continues to provide evidence that nearly everything the recording industry insists must be true isn't actually true -- and he's doing quite well from the sound of things. The continued publicity is helping him sell out a ton of really expensive concert venues according to the article.

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