September 14th, 2006
Re-architecting music licensing, one big social network at a time
In the last three years there have been two developments that have prompted more change in thinking and approach to music licensing than anything the 20th century had to offer (save perhaps the original Napster). The first is Creative Commons, which fosters an ever-growing ecosystem around liberally licensed music. The second, more recent entrant is Podshow’s Podsafe Music Network, with its artist and producer terms specifically focused on use and distribution via podcast. Both strategies attract mainstream artists as well as independents. As someone who has gladly paid for and downloaded non-DRM’d Creative Commons music (check out the offerings of Loca Records, for example), I can attest to the goodwill and loyalty an artist engenders by giving listeners this kind of flexibility and trust. Maybe I’ll never do anything with this music other than enjoy listening to it. Then again, I might. It’s a unique and liberating experience merely to have the legally sanctioned option.
As these forces have gathered momentum, so has the MySpace juggernaut and the vast community of independent music artists and fans to which it is home. Perhaps inevitably, and certainly logically, MySpace recently announced it will be partnering with Snocap to allow bands to sell music, with MySpace as the clearinghouse pocketing an as yet undetermined piece of each transaction. MySpace music sales are said to be coming by year end. Though Snocap offers Windows Media DRM on other platforms, it appears music sold on MySpace will involve more flexible, non-copy protected MP3s.
What I haven’t seen a word about yet though is licensing. What sort licensing options will be presented to the 3 million-plus bands who might use the MySpace-Snocap service? The easy and logical thing would be to integrate Creative Commons — as, for example, GarageBand did some time ago. While it remains to be seen exactly how this will play out, it’s a safe bet (given the mostly indie makeup of the MySpace music universe) that some form of more liberal, user-friendly license will accompany much of the music to be sold. If this indeed turns out to be the case, MySpace is poised to convert the relative trickle of nontraditionally licensed music available on the market today into a flood, and become (to once again borrow Doc Searls’ excellent phrase) the invention that mothers necessity as far as listener licensing demand goes. MySpace has the opportunity to become the first centralized, successful marketplace for liberally licensed music, which then begs the question: given the choice, won’t people prefer to buy music they like that also gives them greater (or at least more convenient and legal) flexibility as to sharing, place shifting, and reuse? And if that’s true, what’s the realistic remaining shelf life of traditionally licensed music? Suffice to say, it’ll be interesting to see how MySpace’s entry into the online music world affects the economics of music licensing. Given the sheer MySpace numbers, coupled with community dynamics reminiscent of those of Napster in its heyday, the impact could be profound. (I realize one can already buy Creative Commons or other alternatively licensed music on iTunes, which undeniably is a centralized, successful music marketplace. But unlike what I think is likely to happen with MySpace, the majority of iTunes offerings are offered subject to conventional copyright. iTunes also as yet offers no ability to search or filter with licensing considerations in mind; you have to find the artists elsewhere and then find them on iTunes. It also lacks the kind of community recommendation power that MySpace packs, and of course the files are subject to Apple’s DRM.)
In the meantime, Creative Commons music continues to break new ground with or without MySpace: witness the concert to take place later today in Second Life.
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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