There have been a few things stirring around in my brain, and making a nice tasty stew. The ingredients of this stew are as follows:

  • Napster
  • Record Company contracts
  • ASCAP and BMI
  • The Sonny Bono copyright extension law.
  • Writing and performing music for the fun of it.
  • Writing computer code for the fun of it.
  • Richard Stallman, The GPL, and hordes of people from all over the world, and what they have wrought.
  • Hordes of people all over the world writing and performing music for the fun of it.

Now that I've dumped the raw ingredients into your brain, you may have already cooked the stew yourself and know what must follow. And I'm sure I'm not the first to have these kind of thoughts. But I'll give you a big steaming pile of my brand of stew anyway.

Starting with the last ingredients first, Richard Stallman, with his GNU, GPL, gcc, emacs, and loads of other programs, combined with the Linux kernel from Linus Torvalds and hordes of helpers, have done what many would have considered impossible if it did not stand there defying impossibility before the eyes of the world. They created a completely free operating system and loads and loads of free software to go with it. (I'm not going to bother to explain the special meaning of the word "free" here, that's not the point of this node.)

Considering that there are many many people who sit around writing and performing music simply for the fun of it, though not as many as sit around programming computers for the fun of it, it is surprising to me that there is not a free music culture in the same way that there is a free software culture. Perhaps it is because most musicians are illiterate? (a weak joke.)

When I was growing up, my dad and my uncles had a kind of bluegrass band. It wasn't really legal for them to perform many of the bluegrass standards, as these songs were copyrighted. This is the musical analogue to the famous story of Stallman's frustration at being denied access to the source code for an early and buggy Xerox printer that he intended to fix himself. This frustration was the very one that ultimately lead to the GNU project.

Some things I've read make me believe the music industry is even more screwed up than the software industry in terms of nightmarish legal hassles. For example, consider the royalty collection services such as BMI and ASCAP. Radio stations pay all of these services some amount which is arrived at by statistical means. That is, these arrogant bastards assume that if you've got a radio station and you play music, you must be playing their music, and furthermore, they don't even bother to find out what you're playing but just assume you're playing "what's popular", and divide these royalty payments however they see fit. If you have a radio station that plays only Led Zeppelin, do all of your royalty payments go to Led Zep? Nope. Probably most of it goes to Britney Spears. But it's worse than this. Suppose you've got a local bar that hosts live music. Suppose you hire a local band that plays only original music. A local band that does not have a record contract. You still have to pay those arrogant bastards ASCAP and BMI, and none of that "royalty money" goes to the band, it goes to the members of ASCAP, BMI, etc, in proportion to how "popular" they are. The assumption is any band must play covers, but there's way too many to actually find out what they play, so we'll just collect from them all, and distribute the money to our members however we like. Now, how the hell is that fair?

So, considering how evil record companies really are, (and I'm not faulting them for protecting their copyrighted works, they have every right to do that, but, c'mon, their methods are a bit draconian.), I have to wonder, where is the free music culture? And don't say "Napster!". Most of what's going on with Napster is outright stealing. So much so, that Napster is probably in danger of being adjudicated or legislated out of business.

Back in the early days of computers, one might have argued (unsuccessfully) that "bulletin boards have no legitimate purpose except to help people pirate software". Well, clearly that was not the case, there was plenty of other rather obvious uses for these bulletin boards, and for FTP sites, and the like. The difference between these and Napster is that the legitimate uses of Napster are not so obvious. But imagine if there were a huge pool of free music out there. Consider all the proprietary software available for Microsoft OSes, and then consider all the software available under the GPL. There's an incredible amount of GPL'ed software out there these days. If there were a comparable amount of free music out there, nobody would wonder what possible legitimate use Napster had.

So, supposing that we're at ground zero, we are RMS, frustrated with our broken printer, as it were, and we want to start down the long hard road to freedom. Where to begin?

How about a kind of GPL for music? Of course we have to recognize that there are significant differences between music and software. They really aren't the same in many respects.

Here's what I think a license for free music should permit and forbid, stated as plainly as I know how (I'm not a lawyer):

The license should permit:

  1. copying of a recording of the work by anyone
  2. live performance of the work by anyone.
  3. creation of derived works by anyone, provided the derived work is distributed under the same license.
  4. copying of musical transcriptions of the work by anyone. (Musical transcriptions may be machine readable, e.g. MIDI files).

except for the following instances, which the license should forbid:

  1. Charging more than a nominal fee for copies of recordings or transcriptions of the work.
  2. Mechanized playback of recordings or transcriptions of the work for commercial purposes.
  3. Modification of recordings of the work, including but not limited to mixing additional audio with the work, truncation of the work, addition of audio to the beginning or ending of the work. Lossy audio compression is permitted, provided the work remains presented in its entirety.

Some further explanation:

Under the activities which are permitted:

I think #1 is self explanatory.

With #2, I intended to allow anyone to perform the work, and charge money for doing so.

With #3, I intended to allow anyone to perform and record variations of the work.

With #4, I intended to allow anyone to easily learn how to perform the work.

Under the activities which are forbidden:

#1 is pretty straightforward. Everyone who doesn't violate the license is entitled to a copy of the work, but is expected to bear the cost of the media and copying process.

#2 is to prevent radio stations, (and thus ASCAP, BMI, etc.) from benefitting unfairly from the works of others.

#3 is to prevent the work from being sampled unfairly, taken out of context, or defaced in any way. If you wanted to create a parody of the work, you could not simply record new lyrics on top of an existing recording, you'd have to record a new version of the work from scratch. (You'd most likely have to do that anyway, so perhaps that's not a great example.)

So, did I miss anything? Did I cover all the bases?

Stealth Munchkin, of course there's no way for songwriters to get paid with this license. This licence is about free music, music for the fun of it. If you want to get paid, use a different license. It's that simple. This license isn't meant for commercial artists. It's meant for me (or those like me), sitting in my bedroom with my guitar, writing a song that probably sucks, or might be terrific, but which I'm not interested in selling in any case. Instead I'm interested in giving it away, while protecting it from being abused by those who would attempt to earn money from it even though they contribute nothing. (I don't mind giving a song away, but not to have it used in an advertisement for Chevy Trucks or something. Not that that would be especially likely.)

You forgot a few rather important points
There is a difference between a songwriter and a performer. With this system I see no way for a songwriter to get paid at all.
Recordings often cost a lot of money to create. Musicians often have to be hired, as does expensive studio time. This money has to be recouped somehow. To create software all you need is a computer. To create certain types of recordings takes a huge budget that needs to be recouped somehow.
And your example about radio stations is wrong for several reasons:
Britney Spears wouldn't get anything from ASCAP or BMI. Her writers would though.
An ASCAP or BMI licensed station can only play a certain amount of music by any artist in a given period.
Most stations, and most large venues (ie those where any significant money would go to the writer anyway) submit playlists to the PROs so the money actually goes to the correct people...

Yeah, I accept that this is not intended for commercial songwriters, but the problem still remains. People who are interested in being paid for their work deserve that payment. You haven't suggested a way in which those people could actually be paid, which still leaves us with precisely the system that is already in place - all this would mean is that the small town band playing original material would still be paying Britney Spears' writers through ASCAP/BMI/SESAC/PRS/whoever, but they would have made a legal declaration that they don't want the money anyway!

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