ASCAP attacks Creative Commons

August 24, 2010 | By | 9 Replies More

No, this is not a comical make-believe headline from The Onion.   ASCAP has lashed out at Creative Commons.

At this moment, we are facing our biggest challenge ever. Many forces including Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth is these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

This smear campaign is a staggering display of ignorance.  Did ASCAP actually hire a lawyer to advise them here? Do they have the faintest idea of what Creative Commons is all about?

Here’s the response of Creative Commons:

Last week, the American Society of Composers, Authors and Publishers (ASCAP) sent a fundraising letter to its members calling on them to fight “opponents” such as Creative Commons, falsely claiming that we work to undermine copyright.*

Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Here’s more analysis, from Techdirt.

ASCAP’s blatant attack on Creative Commons (and EFF and PK; both of whom focus on consumer rights, but not undermining artist’s rights at all) shows their true colors. They’re not about artists’ rights at all. They’re about greater protectionism — which is not (at all) the same thing.


Category: Entertainment, ignorance, Intellectual property, music

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (9)

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  1. Niklaus Pfirsig says:

    ASCAP is supposedly a non profit organization that acts as a clearinghouse for selling permission for the performance of it’s members It effective acts as a billing agency for it’s members which include individuals and corporations.

    It doesn’t do this for free. It keeps about 11 percent of the license fees it collects for operating expenses, which no doubt includes the salary of the CEO, as well as legal fees and lobbying money. The operating expense of ASCAP, as I understand from some cursory web research in in the $90,000,000,000 (#90 Billion) neighborhood.

    To keep this flow of funds coming in, ASCAP must continually augment its membership with productive members. The Creative commons licenses provide a way to completely bypass the ASCAP as a control node, an option that threatens the administration of ASCAP.

    ASCAP has a history of activism against the free performance of any music, and is very much anti fair use. Just last year, ASCAP sued AT&T claiming the playback of musical ringtones are public performances.

    Creative commons, (which doesn’t include Copyleft) simple encourages the IP creators, to specifically define how their works may be used instead of deferring those decisions to the management of parasitic organizations such as ASCAP.

  2. Brynn Jacobs says:

    Maybe ASCAP hired the same lawyers who tried to get Wikipedia to remove the image of the FBI seal from their website?

  3. Tony Coyle says:

    ASCAP is engaging in the same kind of demagoguery as we have come to expect from the RIAA and others in media who are feeling their familiar comfortable revenue streams are being threatened by new media, and by distribution channels not under their control.

    Instead of reviewing the situation rationally, and recognizing themselves in the position of buggy whip manufacturers at the end of the 19th century, it appears they simply seek a scape goat to lambaste, pillory, and pursue with legal vim and vigor, in the vain hope that will sustain their industry and their gravy train.

    Most people do not do well with ‘comprehension for understanding’, but we should expect more from the supposed ‘elites’ who lead our public and private institutions. Such a failure to comprehend simple reality is (to paraphrase a recent Daily Show episode) either Evil or Stupid. The ASCAP leaders responsible are either so stupid they simply don’t comprehend, OR they do comprehend, and must therefore be evil to act in such a way.

    Either way, this is Stupidly Evil.

  4. Erich Vieth says:

    Niklaus: Good points. I’d only note that Wikipedia lists annual operating fees at $933 million, which is one heck of a lot of money. And even 11% of that is a heck of a lot of money. One can’t help but suspect that the profit motive is causing ASCAP to feign ignorance and misunderstanding.

  5. Erich Vieth says:

    Brynn: It makes you wonder whether they all hired John Yoo to give them the opinions they sought.

  6. Erich Vieth says:

    I’m still shaking my head at this position by ASCAP. There’s no way that anyone who took five minutes to study Creative Commons could make this massive intellectual blunder.

    Therefore, I can only assume that this is a ill-spirited smear tactic by ASCAP. Perhaps its genesis is ASCAP’s frustration that music making is no longer a cozy little club controlled by relatively few people. Perhaps they are outraged by the democratizing of publication of recorded music, thanks to Internet tools.

    Time for ASCAP to grow up and be responsible.

  7. Niklaus Pfirsig says:

    It is easy for some to condemn something they know absolutely nothing about. Copyleft is not a part of the the creative commons license. Creative Commons does have a similar license called "Share-Alike".

    Copyleft, Creative commons, GNU Public License and a plethora of other open licenseing schemes are, in fact, affirmation of copyrights that, instead of claiming total control of a creative work, explicitly confers specific rights to the general public.

    This page has a good description of how ASCAP operates.

    ASCAP acts as a brokerage and clearinghouse for the licenses fees for its members.The management of ASCAP claims about 11 percent of its revenues for operating expenses, which is in the tens of millions. (Makes me wonder what their salaries look like)

    In this revenue model, anything other than the most restrictive licenseing terms translates to a lost revenue opportunity for the ASCAP management. Fair use doctrine is also incompatible with ASCAP's business.

    • Erich Vieth says:

      Niklaus: It sounds like copyright expiration is also incompatible with ASCAP's business model. It ASCAP had its way, there would be a federal law that copyrights would NEVER expire, and that it would be presumed that ASCAP would be deemed to be the copyright holder of all anonymous works.

      By the way, did you know that Jonas Salk never patented his polio vaccine? I'd bet that ASCAP would consider this criminal. Here's an excerpt from Wikipedia:

      When news of the vaccine's success was made public on April 12, 1955, Salk was hailed as a "miracle worker", and the day "almost became a national holiday." His sole focus had been to develop a safe and effective vaccine as rapidly as possible, with no interest in personal profit. When he was asked in a televised interview who owned the patent to the vaccine, Salk replied: "There is no patent. Could you patent the sun?"

      I'm assuming that the position taken by ASCAP (re Creative Commons) was not taken out of ignorance or misunderstanding. The proof is the ASCAP has a long history of "not getting it."… This is rather profound ignorance in light of the stratospheric budget of ASCAP. They are not trying to understand. They are trying to obfuscate and use scare tactics.

  8. Erich Vieth says:

    More attacks on creative commons:

    "The producers of the popular CBC radio show Spark have revealed (see the comments) that the public broadcaster has banned programs from using Creative Commons licenced music on podcasts. The decision is apparently the result of restrictions in collective agreements the CBC has with some talent agencies. In other words, groups are actively working to block the use of Creative Commons licenced alternatives in their contractual language."

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