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Weird. Well, two of the patents are assigned to Replug, and they're for mechanical connectors, audio and otherwise, that rely on protruding edges, maybe also springs, to interlock. The other is assigned to Apple and is for a generic magnetic connector. Patent trolls are generally thought of as companies that hold patents just to extort money. That doesn't seem to be the case here. These companies have real products based on these patents. I agree that innovation is stifled by the fear that these patents would be used against the developer of a novel connector that combines these ideas. But to call that "trolling" is stretching the definition a bit. Is anything stopping Apple and Replug from collaborating on a Pogo-like product? It has been 5+ years with no development on that front, so I have to wonder if all they need is someone like Patterson to come along and ask for a license to do it himself. Surely for a cut of the profits, or investment in the company, they would only stand to gain. And they could still, uh, pull the plug if it wasn't successful. Why not seek comment from Replug and Apple for this article?
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Why would anyone expect that pressing a button to indicate "I like Coldplay" implies anything more than declaring that they do indeed appreciate Coldplay's music? Why should "Like" mean "I also want to get relentlessly hammered with spam/inane updates from bandmembers and/or their social media team"? The industry has spent decades making artists and art into commodities and brands, and many artists, marketers, and other hangers-on have reaped the rewards of that. So by default, the public perception of "Coldplay", for example, is as a brand of music. Some may also associate the name with a singer, some with the entire group of musicians, some with a live experience. But first and foremost, the brand means music. Apparently this is news to you, but Coldplay is not, in most people's minds, an entity associated with hourly announcements, advertisements, retweets, and chit-chat making them feel "connected". At least, that's not what fans want a band's brand to be. But the fact that they now immediately unsub from the feeds of bands they Like indicates that increasingly, artists are diluting their brands. Coldplay, at least online, is like an acquaintance you hear from way too often, someone who thinks they're your best friend, when in fact you keep them at arm's length, even if that means some peripheral businessman is going to accuse them of not being "real" fans.
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Statements in the letter indicate the major labels are ready to resume their lawsuits against individuals. There are no announcements trumpeting this from the rooftops the way they did in Dec. 2008 when they (not entirely truthfully) announced they were done with the lawsuits. Perkins is correct insofar as the ISP subscriber has no secondary liability when they are not the actual infringer; see Capitol Records, Inc. v. Foster (2007). But the BMG letter's lack of specifics is troubling. What "evidence" do they really have? Doesn't the subscriber have a right to see it? Which of the half-dozen methods of infringement named in the letter are they accusing the subscriber of? This is important because, as far as I know, case law only supports calling actual uploading and actual downloading infringement, and even then only under certain conditions...mere possession of privately ripped files doesn't prove anything, and whether making-available/"offering for upload" is infringement has not been established in litigation. Also, the letter is for one alleged infringement of one specific work on one specific day. For each person they send these to, they will likely have a list of infringements of multiple works spanning multiple days. If the subscriber pays the $20 just to make it go away, what's to stop BMG from just sending more of these notices for different days and for different works, declaring the accused to be a repeat infringer, and jacking up the settlement amount each time? "Thanks for the $20 for the unproven infringement of song X at 10pm on August 15th, chump. Oh hey, what's this? You were also sharing that same song when we checked two hours later. Here's a bill for $200 for your second offense. Strike two! And oh, look, you were also sharing song Y on both of those days. Strike three and four! The settlement amount is now $2000."
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The point is that the uploader hasn't done anything wrong and shouldn't have to jump through extra hoops, be they easy or not, to clear their name and re-enable access to the content. The fact that you have to do it daily says that something is seriously wrong. A proper remedy is not for the uploader to await the inevitable false claim and then cut their way through red tape to get the content back online, as 17 USC 512(g) requires now. As long as the law allows such bogus claims to be recklessly made "in good faith", with the burden entirely on the falsely accused to rectify, the publishers will have absolutely no incentive to fix their broken content ID system so the false claim isn't made in the first place. 17 USC 512(f) is theoretically supposed to be the falsely accused's hedge against this, but hasn't been as effective as it should be.
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When you speak of divvying up revenue, I don't really understand the argument "getting something is a lot less important than getting enough to live on" in the context of your argument in favor of the regressive system which gives 99% of labels & publishers nothing at all, just so the top 1% can make bank. Anyway, dismissing Stallman's half-baked ideas may be like shooting fish in a barrel, but you're just preaching to the choir. An ISP tax has already been roundly dismissed, even by copyright critics, as unworkable. However, the idea is rooted in studies where pirates consistently say they certainly would be willing to pay something (probably never enough for you, but at least something) to 'legitimize' their swapping and to support the artists, if not the labels. Surely there's a way to capitalize on that sentiment. But if people privately exchanging copyrighted content among themselves is a non-starter for you, there's no point in shooting down ideas for how to monetize it; you clearly aren't interested in anything but total control of distribution, and op-eds like these are just a sideshow. Fact: if people have the ability to make and exchange copies of music, video, or whatever among themselves, they're going to do it, and there's no convincing them with lawsuits and guilt trips to just stop doing that and instead go buy new CDs and DVDs like good little consumers. Any solution based on disabling or outlawing popular uses of technology is unrealistic and inevitably fails, time and again. You have to get behind it if you want a piece of the pie. So let's hear some of your ideas for monetizing the P2P exchange of copyrighted content.
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So you're digging through my TechDirt profile in order to tack on some ad hominem, as if the points you cherrypicked to rail against are in any way relevant to the argument I made? Have fun with that. Let's get back on topic. I stated that this particular class of musicians (and other content creators) generally don't care about or find particularly persuasive any arguments based on artificial scarcity, human nature, and manifestations of the greater public good, be it through limitations on copyright, file sharing, or whatever. Their personal, financial interest in the here-and-now trumps all of those other concerns; they see those issues as lofty, philosophical concerns that only matter to pirates, even though another class of artists, myself included, consider it pragmatic to treat them as very real issues which temper—but don't necessarily eliminate—our expectations of the public. This isn't a particularly contentious observation that needs sources cited. Some creators are evidently in it for the money, or at least get understandably quite resentful when their ability to potentially profit from their work is undermined in any way, to any degree, by the public. This is more important to them than, say, acknowledging and working around public resistance to artificial scarcity, and that's their prerogative. Since you completely sidestepped this, and instead yammered on about the moral rectitude of the artist's apparently unlimited entitlement to payment, you utterly proved my point. Thank you! Since I'm feeling plucky, I'll go ahead and respond to one of your completely off-topic reactions to my TechDirt profile. "just because we have other sources of income doesn't mean our content should be shared" — Had I actually said such a thing, you'd be justified in ridiculing it. However, as I think is pretty clear from the parts you didn't quote, I merely consider it disingenuous when, in an attempt to shame and guilt-trip consumers who aren't paying enough, it is claimed that copying or listening to music without buying—be it via CD ripping and space-shifting, streaming your paid-for content to other devices over the Internet, watching YouTube videos, illegal file-sharing, or legal secondhand sales—is "stealing" and leaves musicians and their families "starving in the streets", as if more than the luckiest handful of musicians are living solely off of first-sale royalties. There was no "therefore everyone should share and never pay for music" claim made or implied. I merely point out that the financial harm to artists is often exaggerated.
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The only material progress, innovation, and infinitely reproducible ideas that TJR, the signatories of the UK letter, and their sympathizers are interested in are those which immediately and directly enrich their bank accounts, preferably with as little ongoing creative effort as possible. You're a fool if you believe these people can be persuaded by arguments based on the contrivance of artificial scarcity or the greater public good. They don't care. They just want their f'ing money until 70 years after they're dead. Their m.o., to this end, is erecting barriers to the natural exchange of musical ideas they've released into the world, and attacking, shaming, and extorting from music consumers who aren't opening their wallets to the degree demanded. Simple as that.
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The comments so far seem to have completely ignored the first sentence of the piece. Maybe it's van Buskirk's fault for not emphasizing his point strongly enough, but it seems to me that he's saying that everyone needs to stop using the sales figures and associated profit margins from the heyday of physical product as the metric by which they measure and bemoan the state of the industry. Instead, in the modern music economy, the new focus, as he sees it, is increasingly and predominantly the pay-per-listen model, where labels and publishers get to charge rent for the mere "experiencing" of music, rather than relying on listeners to make a one-time purchase of their very own brand-new copy of it. Think about it. People are increasingly thinking of music as something that they never own and always pay for, every time they hear it, even if they're only shelling out pennies per song. In theory, that's exactly what the industry has wanted for decades! Consumers who are wise to what you're doing hate your freaking guts for it, of course, but who cares about them, they all just want to freeload anyway, right? Unlike streaming, a sale nets you some pennies, or several rolls of pennies if the product is physical, in exchange for theoretically unlimited listens. So with sales, the per-listen return is quite small, often smaller than what you get from streaming, but you're doing OK with it because you get it all up front. With streaming, the revenue flow is quite naturally a trickle, because it's accumulated on a per-listen basis (notwithstanding the way it's lumped together in billing cycles). The author's point seems to be that you have no choice but to accept this and move on. Stop screaming that the streaming services should be paying out like '90s retail. It ain't gonna happen; it can't happen. It shouldn't be so hard to grasp the reality that when you're getting paid per-listen, your revenue is spread out over time, just like when you sold a CD, you had to wait until the consumer was ready to buy another copy, and in the meantime, the $5 you got for the sale was spread out among who-knows-how-many listens. Yes, you used to get $0.50/song, and you now get $0.0005/stream or whatever. When you were getting $0.50/song and someone listened to it 1000 times, you were getting $0.0005/listen, just like you are now. But what you were counting on was that a lot of CDs were sold and only listened to 10 times, 20 times, 200 times, tops. The more CDs someone bought, the less they listened to each song. But they had to buy the CD to get at least 1 listen. So they were essentially paying, per-listen, much more than the most devoted fans, with small collections, who got hundreds of listens out of each purchase. Nowadays, charging per-listen, with huge catalogs available, you don't have the luxury of a percentage of people overpaying like they used to. That market is gone. This is one of several reasons why streaming just isn't going to be the cash cow that physical retail was. I think the underlying, much bigger problem is that people simply don't feel music is worth paying very much money for, they only have so much money to spend anyway, and advertisers certainly can't subsidize streaming (or terrestrial radio for that matter) at rates comparable to retail, per-listen.
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Because you're a pathetic Internet troll? I wish you could hear the comical, snide voice I use to read these posts aloud. It really puts your comments in the proper context. Look, I never heard of Palmer before reading about her on a blog like this one, and didn't know and still don't care about her connection to Gaiman. I simply read her pitch, saw what she was offering, and thought it was pretty good. Clicked on her video, thought it was cute and the music was interesting. The whole package just works. Clicked on the pledge button, pledged what I can afford, and am looking forward to getting what I feel is worth that pledge, and looking forward to seeing the whole endeavor be a success. Simple as that. All of you who are pointing out who her husband is, trying to make it sound like she doesn't deserve the money for her project, just what are you trying to accomplish? You want people to be unimpressed? You want people to not choose to spend their money on her project, and back traditional marketing and labels instead? You want people to think they're being manipulated? You want people to believe that most of the money comes from Neil Gaiman's rich friends? You think she should be shunned for making a show of how DIY she is? Should people rescind their pledges? Just what is so "shameless" about "running Twitter commercials" to her and husband's fan bases? Who cares? Seriously, none of your arguments is the least bit persuasive. You seem to be in utter denial of the fact that a whole lot of people just like what she's doing and like what she's offering. If her art, music, offerings, personality, or marketing sucked, people would not be backing her project! Her cult celebrity, her past work with record labels, and her association with Gaiman wouldn't have made up for any of that. And I think you are seriously overrating the degree to which those things have contributed to her Kickstarter success. I mean, who the backers are, and how that breaks down into funding levels, is right there on her Kickstarter page! It's not a secret, it's right there! If there were 5 people who gave $200K each and 21,000 who gave $1, you might have a point, but clearly that's not the breakdown at all. So, you fail. But you're free to contact those people and see if your conspiracy theory is true, see if it's all just rich devotees of Neil Gaiman. Go ahead, I'll wait. Oh, and congratulations for upholding the stereotype of the jealous, outsmarted businessman, muttering that people couldn't possibly have willingly chosen to spend their money elsewhere...
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I do agree with all of your points, including segmenting fans for targeted promotions based on how much they paid. But to regard your highest contributors as your "best fans" implies that you think people who paid more are always exactly that much more loyal and worth more to you than people who paid less. Well, there may be an observable correlation, but it's not necessarily true across the board. There are many reasons why someone pays what they pay. Maybe their entertainment budget was very limited that month. Maybe they just didn't think that particular offering was as good as your others; if you put out a turd no one wants, it doesn't mean the people who got it for free or who didn't give you positive feedback on it aren't your "real" fans. Likewise, those who did pay for it maybe just had an unexpected windfall and decided to give more than they would've normally. Maybe they gave generously once, in anticipation of not being able to do so in the future. You never know; that's why when soliciting donations, it's generally bad form to make too big a deal out of the amounts people give. Personally, I'm overjoyed when anyone expresses sincere appreciation for my music and photography, but I don't regard the non-payers or non-acknowledgers as any "less of a fan" than anyone else. Sure, some of them probably are less of a fan, but it's not an assumption I can or should make about all of them.
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I also disagree re: singles. The concept album represents the death of songcraft, and the rise of filler and the artist's ego. Why sell one great song for cheap, when you can bundle it with some not-so-great songs for a higher price? The industry-supported abandonment of the single led to the "intent" of the artist being that fans will be eternally loyal, buying every album and listening to it in its entirety over and over, attending all their concerts, buying all their merch, and spreading the gospel about them. But the reality is that listeners are only sometimes that loyal, and are generally all over the place in terms of album vs. single preferences. Shuffle-play and other radio-type services are the status quo for them. They still want singles. Other listeners prefer the album format, though. Many exhibit both preferences, depending on artist, circumstances, and their mood that day. Many will tell you they think albums are overpriced and full of filler. Others are more than happy to listen to albums all day. Anyway, the only comment I would add about the value of ownership is that some people, a minority perhaps, also value their privacy. These people do not like having to give up anonymity and all their personal info just to buy or stream copyrighted music and video, which is what industry-embraced technology generally requires of them. They especially don't want to give it up if it means that info might be used against them someday. For these reasons, piracy will always have a degree of public appeal not unlike that of paying cash for a physical CD or video: not just ownership, but private ownership.
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"it is now time that the music industry begins to focus on expansion and positivity rather than fear and protectionism" Where is the action to back up that rhetoric? The international ACTA and TPP power-grabs are proceeding unabated. PIPA is far from dead and certain Congressmembers and DOJ honchos are bought and paid for by the RIAA. Cyberlocker service shutdowns throw out the baby with the bathwater. Litigation against small-time, non-commercial infringers continues. Fear, intimidation, and extortion is still the industry's public relations m.o. The apparent recovery indeed owes much to the industry finally beginning to meet consumer expectations, but the industry is only half-heartedly embracing the kind of technology and services that it rejected and tried to litigate out of existence a decade ago; it continues to drag its feet and fails to meet many other market demands, such as those regarding format, privacy/anonymity, and progressive licensing for noncommercial streaming and distribution. As long as the industry keeps slap and strangling with one hand, chipping away consumer rights and privacy, it doesn't matter what market-appeasing gifts are in the other. The industry continues to foment resentment and distrust. It will take more than an op-ed on a blog to regain broad consumer goodwill.
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Feb 6, 2012