Changing the language of plays, spins and streams.

In reading this Bloomberg Businessweek piece about Google's new streaming service All Access this quote stuck out for me:

The Web runneth over with stories from artists discussing just how little they are making from streaming. In one, folk rocker Damon Krukowski examined his own paychecks from album sales and streaming services for Pitchfork. He concluded that a song of his would have to be played 47,680 times on Spotify or 312,000 times on Pandora to earn the profit of a single LP sale.

What strikes me about this is that if it takes so many plays to equal the income of one sale, why are we comparing apples to oranges? Is there actually anything to gain from the comparison?

It's as if our language no longer describes what is happening in the music business. How does a performance of a song differ from a spin or a play or a stream or a view or whatever? What are these things and how does the interaction a listener may have through each equate financially, especially in comparison to that of a sale?

Lots of questions here, but my point is that each of these words is used to describe a different artist-listener interaction and each represents a different revenue stream having different value. Yet despite this, we continue to insist that they are the same when they are not.

I've written before about considering streaming services to be radio replacements. One way to define a spin is its audience reach (perhaps as measured by Nielson/BDS). That is simple definition, but one that drove the record business for a long time. During that time, the spin had a complement: the sale. One of them provided an easily measurable metric defining marketing reach; the other provided a sales margin defining financial success. Enough of the first could lead to even more of the second.

The problem is that the results are now so drastically different from our experience that it's no longer useful to compare one to the other. I'm not suggesting I have a solution, but maybe if we change our language and redefine what each of these interactions means (in terms of metrics and/or in terms of margin), we can assign them values that will allow comparison. By doing so we will begin to tease out how they can fit together to create a new model.

A place to start is through case studies. (Here is a compilation via Stuart Dredge.) One thing is clear: the search is about the individual artist. There is no cookie-cutter approach. Each artist is unique, so why shouldn't their business plan be unique too? This is an important consideration at a time when the well-worn methods once used to market and sell music no longer have the same effect. If we discard our old language, our old definitions, we can replace them with new ones and ultimately see how to plot a path forward.

When is a safe harbor not actually safe?

I've written about the Digital Millennium Copyright Act (DMCA) before (here and here) in the context of how its "notice-and-removal" and "anti-circumvention" language can be used in unintended ways to limit free speech or stifle innovation. A decision last week by the New York State Court of Appeals 
creates a new problem for innovators trying to keep their services from running afoul of copyright owners.

The notice-and-removal process codified by the DMCA is the result of language (in section 512 [PDF]) that creates a "safe harbor" for service providers, protecting them from damages resulting from claims that their service is being used by third-parties engaging in copyright infringement. To be protected from these claims, service providers must remove infringing content upon notice by the rightful copyright owner.

This extremely important provision is designed to protect innovation. Without such safe harbors, companies might be unwilling to create new products and services given the chance they could be shut down as the result of the illegal actions of their users.

The ruling (in Universal v. Grooveshark) calls into question the DMCA's safe harbor provisions and creates dangerous ambiguity over what protections service providers can expect.

The basis for this ambiguity is existing copyright law.

Prior to 1976, copyright law in the US existed under the dual jurisdiction of both Federal and State law. Congress attempted to eliminate that confusing system, unifying copyright law as part of the 1976 Copyright Act. However, certain elements remain carved out, in this case, pre-1972 recordings that are still protected by State law.

In this case, Universal argued that the DMCA safe harbor provisions only apply to works covered under Federal law (and not State law). Therefore, Groovershark is potentially liable should any of its users upload pre-1972 recordings. (It should be noted too, that these are not insignificant recordings; they include well-known songs performed by Buddy Holly, Chuck Berry and The Supremes.)

This will not be the final word however--the case will undoubtedly be appealed. While the ruling may strip Grooveshark of its protection under the DMCA, a separate ruling in Federal court (Capitol v. MP3Tunes) says the opposite, that works covered by State law are afforded DMCA protections.

What all of this means is that copyright continues to be a confusing system of laws that endangers innovation by not keeping pace with technology. While it is important that intellectual property rights be protected, we must find ways to ensure these protections don't have unintended consequences. Luckily (though the timetable is not clear), House Judiciary Committee Chairman Bob Goodlatte (R-Va.) announced last week his intention to conduct a review of US copyright law. This couldn't come at a better moment, as only through overhauling copyright can we guarantee that our intellectual property laws are in sync with the demands of modern technology.