Bizarre vs. Bazaar

In a bizarre move that requires a bazaar response, the U.S. Copyright Office plans to price Webcasters off the Net and replace the creative commons with a content pumping system for Big Media.

Are you ready to lose Internet Radio? Well, get ready, because that's exactly what will happen if the Copyright Office carries out its current interpretation of the DMCA.

For context, let's go back a couple weeks to when I wrote about some of the radio flowers blossoming on the creative commons we call the Net. Here's a bouquet:

I've also written about our friends at KPIG and Radio Paradise, where Bill Goldsmith has been making the most of open-source methods and software to give this young industry what it needs to grow and even make a little money along the way. When you tune into his stations (and to many of the others listed above), you're literally listening to Linux.

What we're seeing with Internet Radio, even more than we saw with Napster, is the music market's workaround of a grotesquely obsolete regulatory environment where big-time broadcasting has grown safely protected from accountability to its own users. Today the AM and FM bands are populated almost entirely by a strange breed of immense mutant advertising-fed cattle that seem to reproduce only by cloning. Drive through four cities hitting your radio's SCAN button, and you'll find at least four different “Good Times, Great Oldies” stations playing the same playlist of 200 songs. And that's just the tip of the shitberg.

Simply put, Internet Radio is what happens when Demand gets the power to Supply. It's nothing more complicated than The Market at work.

But the regulators and their bizarre beneficiaries have no idea what a real market is, and they are lined up with bulldozers, ready to replace nature's own music marketplace with a new Net-enhanced version of the plumbing system we call The Media. They started with the DMCA, and their latest bulldozer is something called CARP, the Copyright Arbitration and Royalty Panel. After meeting in secret for the last several months, CARP issued a report on February 20 “recommending rates and terms for the statutory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions (”webcasting“) under 17 U.S.C. §114...” etc.

Specifically, CARP wants to charge very steeply—punitively—for broadcasting music on the Net. KPIG lays out the issues as kindly as they can:

Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, or - more likely - it's just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 - $10,000 per month) that would make it impossible for us to stay online.

The effect will be to outlaw webcasting, something the big broadcasters will never miss because it's a pain in their butts anyway.

The DMCA anchors a strategic vector for these people, and it's not hard to see where it's pointing. How long before the Library of Congress (which is behind CARP, by the way), in cahoots with some new industry-led enforcement body, starts crawling the Web looking for matches between quoted and copyrighted text and busting individuals for violations? How long before free speech starts costing you? (And not just Dmitry.)

Webcasting is just the first species marked for destruction. Whether this is an evil plot, a dumb bureaucracy at work or both, the effects are the same: the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of “content” (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

So what can we do, beyond what the EFF and other friends are already up to?

In my most recent SuitWatch newsletter, I called for two courses of action:

One is to do everything we can to draw a distinction between the place-based concepts on which the Net and the Web were based (and which drive expressions like “address”, “site”, “home” and “location”) and the plumbing-based concepts by which the both regulators and Big Media want to redefine the Net (and which drive expressions like “content”, “deliver”, “move” and “distribute”). I think Larry Lessig and the Creative Commons folk (who will have a high profile at the upcoming O'Reilly Emerging Technology Conference) are doing a good job at framing that one up. But we need to build on the Commons concept; just being conscious about language will help. Look at it this way:

  • We have the advantage if we talk about the Net as a place.

  • They have the advantage if we talk about the Net as a plumbing system for shipping content.

(And make no mistake, it is a death-match between the two, one fought in our own minds as well as out in the social environment we call The Marketplace.)

The other is to march on Washington*. I know that's very 60s and retro, but sometimes you just have to get physical. You have to deliver the missing clues, in person, to elected representatives and the regulators they employ. What better place to do that than on the nation's home commons? For a little motivation on that one, let's revisit the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Congress made exactly that kind of law with DMCA, and it needs to repealed.

Let's show these guys there's nothing bizarre about democracy at work but, instead, something very bazaar. It's hard to imagine a more peaceable assembly than one that's nothing more than a real market doing its real job.

*Or we could take a train, webcasting live music along the way, stopping to perform and have fun at venues along the way. Whatever it takes.

Doc Searls ( is Senior Editor of Linux Journal and a co-author of The Cluetrain Manifesto. The opinions he expresses here are his own.


Doc Searls is Senior Editor of Linux Journal


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Simple Solution

Anonymous's picture

Change copyright law so that a copyright becomes the non-transferrable right of the author. The problem directly stems from big corporations owning the rights. Think about it: how can a non-natural person (i.e. a company, a thing that has no mind, no moral and no conscience per se) own rights to something intellectual?

BTW, this would also solve the problem with patents of any kind...

Re: Bizarre vs. Bazaar

Anonymous's picture

dosnt Macromedia Flash stream all the time?

Re: Bizarre vs. Bazaar

Anonymous's picture

Re: Bizarre vs. Bazaar

Pflaumekorb's picture

The idea of a march is enticing. It has the advantage of alerting the public opinion and inform those who otherwise would not be aware af the present issues. Go for it!

Constitutional questions

Anonymous's picture

I, for one, think the first amendment is the wrong place to fight the DMCA. I think it should be fought with sections 1 and 3 of Article II of the US Constitution.
Section 1. The executive power shall be vested in a President of the United States of America.

Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
When Congress attempts to execute copyright law by way of a protected "technology" it is usurping the prerogative of the executive branch of government.

Re: Constitutional questions

Anonymous's picture

I forgot to mention this also applies to the SSSCA and all other attempts, short of a constitutional amendment, by Congress to execute laws that it has passed.

Re: Bizarre vs. Bazaar

Anonymous's picture

Hey I know how to bring the price down to a managable level. Simply have whatever levies the CARP suggests apply to all media streaming. That includes radio. Radio has always been exempt from paying for their content. If they were stripped of this boon, then webcasters and radio stations would be competing on a level playing field. notice also that Satellite Radio should also be placed under this rule too.

Re: Bizarre vs. Bazaar

eckes's picture

In Germany Radio has to pay of course for their broadcast of copyrighted material.

In fact I see nothing wrong in reserving the rights on copyrighted work.

Re: Bizarre vs. Bazaar, more of my rant

Anonymous's picture

BMI is an American performing rights organization that represents approximately 300,000 songwriters, composers and music publishers in all genres of music. The non-profit-making company, founded in 1940, collects license fees on behalf of those American creators it represents, as well as thousands of creators from around the world who chose BMI for representation in the United States. The license fees BMI collects for the "public performances" of its repertoire of approximately 4.5 million compositions - including radio airplay, broadcast and cable television carriage, Internet and live and recorded performances by all other users of music - are then distributed as royalties to the writers, composers and copyright holders it represents.

BMI's roster of affiliated songwriters and composers is unsurpassed and includes outstanding creators in every style of musical composition: from pop songwriters to film and television composers; from classical composers to commercial jingle writers; from library music to musical theater composers; from jazz to hip-hop; from metal to meringue; classical to classic soul; from rock to reggae, and all the categories in between.

That roster includes such legendary creators as John Lennon, Chuck Berry, Dave Brubeck, David Bowie (PRS), Milton Babbitt, Willie Nelson, The Eagles, Thelonious Monk, Carlos Santana, Sir Elton John (PRS), The Neville Brothers, The Beach Boys, Aretha Franklin, Waylon Jennings, Charles Ives, The Who, John Kander & Fred Ebb, Leadbelly, Eric Clapton (PRS), John Williams, The Bee Gees, B.B. King and Antonio Carlos Jobim, to name just a few.

The current BMI honor roll also includes Janet Jackson, Michael Kamen, Faith Hill, Sting (PRS), John Adams, Joshua Redman, Jennifer Lopez, Sheryl Crow, Jay-Z, 'N Sync, Mike Post, Britney Spears, Eminem, Mariah Carey, David Yazbek, Bob Israel, Kid Rock, Elvis Crespo, Oasis (PRS), Sarah McLachlan, Steve Reich, Thomas Newman, Faith Evans, matchbox twenty, Snuffy Walden, William Bolcom, Shakira, and Snoop Dogg, to highlight just a handful.

BMI was founded 61 years ago in order to open the door to performing rights representation for songwriters and composers and to provide the business and broadcast communities with a music catalog of unique and lasting value. We continue our commitments to both the creators of music and those who bring it to the ears of the public.

Re: Bizarre vs. Bazaar

Anonymous's picture

Most artists are members of one of two organizations: ASCAP and BMI. Before anybody engages in discussions regarding CARP or any other proposed method of music distribution, please review these two organizations and their history.

ASCAP: The American Society of Composers, Authors and Publishers,

ASCAP is a membership association of more than 120,000 U.S. composers, songwriters and publishers of every kind of music and hundreds of thousands worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership.

ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music.

BMI: BMI is an American performing rights organization that represents approximately 300,000 songwriters, composers and music publishers in all genres of music. The non-profit-making company, founded in 1940, collects license fees on behalf of those American creators it represents, as well as thousands of creators from around the world who chose BMI for representation in the United States. The license fees BMI collects for the "public performances" of its repertoire of approximately 4.5 million compositions - including radio airplay, broadcast and cable television carriage, Internet and live and recorded performances by all other users of music - are then distributed as royalties to the writers, composers and copyright holders it represents.

ASCAP and BMI monthly fees apply, regardless of how you choose to distribute the music. For example, if I own a restaurant, and choose to sooth my customers with the sounds of the local rock and roll radio station, my business is on the hook for monthly fees. Period. This isn't new or evil, this has been the music industry for the past 60 years or so. All of the comment I've read this past year regarding this content distribution space just pisses me off. Learn about the history of these organizations. Learn why artists do sign up with them.

Oh, the comment from the previous poster, "Radio has always been exempt from paying for their content" BULL*****, you do not know what you are talking about. LEARN THE INDUSTRY before engaging in this childish whining. (I truly feel like I'm reading the work of my 13 year old son.)

The only option for avoiding the ASCAP/BMI fees:

Webcast music that is not created by artists who have signed contracts with these entities. I recall that Prince has a gig going to do exactly this, good for him!!

Let's March!

Anonymous's picture

If someone organizes a march on Washington, I'll be there!

Re: Taking control

Anonymous's picture

I firmly believe that what needs to happen and what will happen is that a movement of independents will wrest control of content from the large corporations. The entry barriers that the behemoths create will force independent artists (musical, literary, and more) to develop methods that allow independent publishing, distribution, marketing, and sales of their creative content.

Obviously, compressed audio formats such as MP3 and Ogg Vorbis form the technological foundations for distribution of audio but more infrastructure is needed to support independent publishing. A rating forum, such as slashdot, where community moderation decides what is worthy, will perhaps be useful in filtering the independents, allowing an expression of demand. Audio can be delivered, either in samples or in total, over the internet. Independent foundries, such as a CD presses and a printing presses (similar in concept to integrated chip foundries), will reduce the barriers to the production of tangibles.

An open, secure, and yes, equitable method of remuneration must, however, be developed to ensure the success of the independents. Physical products, such as disks and books, can easily be purchased using standard web technology, and delivered, not through retail stores, but direct to customers via standard mailing methods. Digital products, music and books, can be delivered electronically. Perhaps artists will thrive by receiving payment based on the honor system but more likely, a micropayment scheme for singles or streams will be necessary, as well as a standard macropayment scheme.

A collective of independent artists (i.e. a guild) and free/open technology will allow the displacement and eventual elimination of the too-powerful, monopolistic entities that aim to control perception and thought through control of content. No longer will musicians or authors be squeezed in a contract vice to bleed money for these thieves.

We've got a start on the technology. Let's round it out and get the grass roots growing!

Re: Taking control

Anonymous's picture

Boycott! Don't buy anything CDs, Movies, new books, until they relent. It is all crap anyway. They want to force us to subscribe to their sterilized formulaic entertainment while preventing independent creativity. Welcome to a "Brave New World".

Re: Bizarre vs. Bazaar

Anonymous's picture

  • We have the advantage if we talk about the Net as a place.
  • They have the advantage if we talk about the Net as a plumbing system for shipping content.

uh-oh, that's how we talk about it too. viz.

  • TCP - Transmission Control Protocol
  • UDP - User Datagram Protocol. (I keep expecting a man to show up in a gorilla suit to deliver a singing datagram.)
  • PPP - Point to Point Protocol
  • SMTP - Simple Mail Transfer Protocol.
  • HTTP - Hyper Text Transfer Protocol

For that subset called the web maybe there are "placy" metaphors but for the core of the net itself, the language pretty clearly indicates getting "stuff" from point a to point b. So until there is an RFC for FLIP (Fuzzy Love In Protocol) I don't see how one can get far with this line of argument.

Re: Bizarre vs. Bazaar

Anonymous's picture

My house is a place but do I call it a "transmission media" because it has pipes, wires, airwaves, a mailbox, and a driveway constantly bringing me "content"? Hell no. The net is no different once you accept that a place can exist without concrete, steel, and wood (and pipes, wires, etc.).

The place is not the wires, the protocols or even the bits. The place is in the connected minds of the users and the community that emerges from those building blocks. It is real and backed up on hard drives around the world: it has a physical presence. Just don't fail to see the place for all the bricks and mortar.

Re: Bizarre vs. Bazaar

Anonymous's picture

I guess in public when I speak, since it goes from my mouth to your ear ( point to point ) it is no longer the public place for exchange of ideas, speach etc.

Re: Bizarre vs. Bazaar

Anonymous's picture

The problem with this argument is that you're talking about the roads and we're talking about the houses.

Your PC is not a "content delivery system" any more than your house is an "audience containment system".

Re: Bizarre vs. Bazaar

Anonymous's picture

Broadcasters have always had to pay for the rights to play music that is not produced or owned by themselves. Who are web broadcasters to dictate what the price is for utilizing content they don't own? Go produce your own content, and I don't think you will have to worry about being shut down.

Re: Bizarre vs. Bazaar

Anonymous's picture

No, they haven't. It's a relatively recent practice.


Anonymous's picture

Saying that you have to pay for rights does not justify any amount you want to charge. For example, cable companies pay a fee for the network content they rebroadcast, but they get a compulsory license, which I believe has standards set by law as to what can be other words, the networks couldn't suddenly say "pay $1 per hour per customer" and put the cable companies out of the business, because the license fee is supposed to be reasonable in order to encourage diversity and competition in the content-distribution market.

Re: Bizarre vs. Bazaar

Anonymous's picture

These broadcasters are perfectly happy to pay, they just want to pay a reasonable amount.

Currently, broadcasters pay license fees to songwriters' royalty management organizations, such as ASCAP and BMI. The fees are scaled to the range of the station, the number of listeners according to ratings, and the station's profitability. A typical fee for a small, nonprofit college radio station might be around $600 per year. The money is divided up among songwriters (not record companies; they get their royalty from sales, not performances) according to estimates of the frequency of each song being played. The system isn't perfect, but on the whole it's not terribly onerous.

CARP wants to replace this with a system where the record company (not the songwriter) gets a payment for each song you play, for each listener tuned in. A station like KPIG or KPFA would quickly be crushed under the burden if this vastly higher royalty structure--that $600 a year could become $120,000. It's completely out of scale. Hardly anyone could afford to webcast; certainly no small independent stations.

Reasonable roytalties are good. And it might be a good idea to change the current royalty structure somewhat, since small stations can now have considerably greater "range" via webcasting. But huge, confiscatory royalties will just kill the market, and that's good for nobody.

Re: Bizarre vs. Bazaar

raincrow's picture

Here's a question that I've never seen answered (due probably to my own lack of attention/research):

Is opting into all of this technology MANDATORY for all content producers?

I run a small publishing company that puts out the hothouse flower of all publications: a literary magazine. When the print issue sells out, I create a freely downloadable/distributable PDF version of the issue -- all of the authors within have agreed to let their work appear in it. Would I be forced to use DCMA-compliant methods of production/distribution even if I as publisher and the authors I've published have agreed that we do not want that mechanism surrounding our collective work?

Effectively, if the corporate/cultural oligarchy decides to make it cost-prohibitive for small publishers or broadcasters to distribute the big-business product, how feasible is it to create a separate cultural economy? Perhaps a network-based analogue to local economies of talent (local theater, local music, local literature, etc.)?

Personally, I already ignore television, cinema and most commercial radio as it is irrelevant to my tastes, but I recognize that I'm likely not in the majority.

Re: Bizarre vs. Bazaar

odonnell's picture

Is opting into all of this technology MANDATORY for all content producers?

Strictly speaking, no. But, if the new Hollings bill ("Consumer Broadband and Digital Television Promotion Act") succeeds, it will be illegal to purchase computer equipment without anti-copying mechanisms controllable by copyright claimants. You will bear a substantial portion of the burden of "all of this technology," even though you won't have to use its functions.

Re: Bizarre vs. Bazaar

Anonymous's picture

Dear Raincrow,

Your effort is exactly what I would like to see more of. No, I don't think Hollywood or big media can control what you and your authors do with your own work. The Copyright laws state that you and you alone decide what to do with your production, at least until 50 years after your death! More power to you!!!

Re: Bizarre vs. Bazaar

Anonymous's picture

It must be wonderful to live in the land of the free, I cannot wait until the rest of the world learns to follow by your example. If they dont agree, we should bomb them until they do...

Personally - I'd move, and sing my heart out over the internet without the fear of the men in black busting down your door.

Re: Bizarre vs. Bazaar

Anonymous's picture


Why do television, cinema and commercial radio make no mark on you?

If those market sectors were open and free, anything could happen within them. With the past and present locked down, the movie and music industries seek to acquire the future. The legislatures seem eager to comply.

The points raised by Doc and others are calls to arms for people to resist such an outcome.

Ken Keller

Re: Bizarre vs. Bazaar

raincrow's picture

I choose not to "consume" those products. We haven't yet reached the point where the off-switch is illegal on the TV, or guitar ownership is prohibited, or photocopiers are licensed. Should that day ever come, then we'll have reason for a call to arms. Until then, we should remember that the production of culture by an oligarchy of corporations is a very, very recent abberation on the big time-line of human history, and is not a mandatory game that we must all play or die.

What the oligarchy does with its cultural product is its business. They do not define the whole of any culture yet, despite the amount of noise generated by these "sectors." There are alternatives. And should they choose to close their markets off to only those willing to pay, or to those who lack the imagination to do anything but pay, I don't care. It looks like a closed system to me -- without continued energy (money) put into the cycle (you and me and everyone else buying their wares), eventually it has to feed upon itself, or collapse.

A film, a song, a book or any other human construct only has value when there is interaction using the construct in the form of conversations (to tweak one of Doc's favorite memes) such as author/reader, or performer/audience or any other form of the rhetorical situation. It appears to me that the oligarchy is headed down a road that ultimately leads to a system that places demands on the particpants that cost more than the benefits of participation are worth. When that kind of situation appears in the "free market" (my vote for the most overused and nebulous term of the last half-century), then the "market" (by which we mean the actual living, breathing, thinking and feeling human beings who are more than economic creatures) go elsewhere, and then all of the "content" locked up in the oligarchy's system begins to lose value as we walk away from their game.

I say we go elsewhere now.

Re: Bizarre vs. Bazaar

Anonymous's picture

As you say, " I say we go elsewhere now."

I agree wholeheartedly.

Why "worry" about the DCMA and CARP locking down the commercial dribble we have all heard a thousand times anyway?

I am an amature musician, among millions of others, who can, and do create interesting, enjoyable, and very entertaining art. The Open Audio License (See EFF) is the way for us to feed those who demand internet music and can legally and freely receive it via (OAL).

We shall feed ourselves!!!

From now on, we shall say....

"No thank you Hollywood, we DON'T NEED you!"

It doesn't need to stop there....can we produce great software with the cooperation of large teams? Can we create interesting music and other art? Yes. OK...a logical evolution is that someday there will be Full Blown Movie Production done by amibtious teams of real "OPEN INFO" advocates.

The Internet has set us free...we just need to start walking down that road.

John Chufar

Re: Bizarre vs. Bazaar

Anonymous's picture


Nutshell version: If you do not have specific "digital reproduction rights" to republish an author or artists work either as a whole publication and/or in part-- you're screwed legally. The creator can and might come back for payment.


Re: Bizarre vs. Bazaar

raincrow's picture

Right. That's why in the contracts I have with my authors, they agree to let their story be published in the free PDF version only if the print run sells out and only in the full context of the entire issue. So far that's been fine with everyone. The rights I acquire (and pay for) are non-exclusive. Neither I nor my authors feel that we are served by having the magazine kept under lock and key. I suppose I will have to amend future contracts with the appropriate language.

Granted, there's also no massive financial or reputational gain to be had in ripping off a literary magazine, so this may all be academic.

My question is whether or not it is feasible to avoid all of the DCMA and SCCCA or whatever's next by fostering cultural communities or creators and publishers that have decided that such "protection" is counter to the goals of the community. In addition to not adopting them for work produced in the community, we also sidestep the oligarchy and its control by simply not consuming its wares. I'm quite fine with all of their DRM schemes and its associated hassles -- I simply choose not to participate in those schemes or "consume" culture distributed that way.

Re: Bizarre vs. Bazaar

Anonymous's picture

This needs to be Slashdotted ASAP.

Tony Collen

Re: Bizarre vs. Bazaar

Doc's picture

I agree, but it looks like it was covered already, here and here. No pointers to this piece, though. Too bad.

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