A Critique of the EFF's Open Audio License

Brett Glass writes: "This weekend, the EFF is staging a public concert in San Francisco's Golden Gate Park to promote its "Open Audio License" (OAL), a music license based loosely on the GPL. But is a license intended for software a good starting point for a license for music? And is the EFF's license a good choice for composers and performers? This critique discusses the intended and unintended effects of the EFF's license, and suggests alternatives that might be more beneficial (and more palatable) to musicians, composers, and performers." Some of Glass' critiques seem a little silly - they're intended goals of the license, not flaws.

In fact, let me make a brief response to Glass' points as he makes them in the critique -

OAL gives away too much: No response to this. It's for the artist to decide.

No credit to performer: Silly criticism. An intended aim of the license. The performer is free to seek an alternate license from the author if he/she wants to profit off of the song.

Potential damage to reputation: Silly criticism. An intended aim of the license. Like the GPL, this license assumes that free and open should be free and open to everyone for every purpose, even those you find distasteful. "Oh my god, someone is using my GPL'ed program called grep to search for abortion providers in the phone book!"

Viral nature: Silly criticism. An intended aim of the license. Again, if you want to incorporate chunks of someone else's work in your own, you are free to a) be infected by the OAL, or b) seek a different license from the author. Free with restrictions, or, presumably, pay the author for a different deal. Without this license, only b) is available. The OAL only ever provides a possible alternative for people wanting to use a work.

ASCAP and BMI don't enforce the OAL: This is an issue to take up with ASCAP or BMI.

Irrevocable: Silly criticism. Even without this clause, you couldn't "take back" the license, at least for people who've already made use of your work - they took advantage of the license at the time.

Most of the rest of Glass' criticisms are general criticisms of any Free license - it gives away the rights of the author. Well, duh, that's what it's supposed to do. These are criticisms of the aim of the license rather than flaws in the license. What Glass is lacking here is a general BSD-type license for music to compare this against...

Comments

Music lies between text and code.

[westfirst]

The guy who wrote Free for All had a long explanation about why the book wasn't free. He points out that text and opinions are best copyrighted because copyright doesn't affect the facts themselves. If you want to reuse the facts, you're free to do so. You just can't reuse the exact form.

But music is kind of different. Songs do grow as other people add stanzas, verses and what not. So I can see the advantages of the OAL. This guy is complaining too much. Sure, you give up some rights when you use it, but you gain others. What's the big deal? Everything in life has tradeoffs.

It's not a "critique" if it comes from Brett

[Bruce Perens]

Brett just doesn't like any form of free media or software that can't be "taken private". He's also very strongly opposed to the idea of free media, software, etc., if it takes the profit from commercial practicioners who would produce the same thing for a high price.

Brett would prefer if we'd all put out free media that he can take private, commercialize, and not return anything to the creator. I just don't see what's in it for anyone but Brett. Most people don't take him seriously.

Bruce

Re:It's not a "critique" if it comes from Brett

[Bruce Perens]

If you insist.

And yet here you are, posting for the first time in over half a month (save for replying to two posts which refer to you by name in their subject lines).

Yes. I find that these days I can be published in better venues. They get me more views, and a broader spread of readers than slashdot, while on Slashdot I'm generally preaching to the converted. That's fine, but I'm after new converts and can reach them better elsewhere. And I'd still be replying to posts with my name in them, except that the search function on the new slashdot software no longer will return hits sorted by time, and I can't find them any longer.

Feel free to tell me otherwise, but I'd say it looks an awful lot like you do take him seriously, enough to try to marginalize him as a selfish kook.

I posted because there are a lot of newbies on Slashdot who might not know Brett and his history. It's not out of order for the more experienced readers to help them out.

Think nobody was taking him seriously when he was cleaning your clock in the Silicon Valley roundtable?

A number of the other panelists did not feel he belonged there, and although the SV folks admitted they screwed up by inviting him, and were quite chagrined about it, their own policies did not let them uninvite him. I probably spent too much time replying to him.

You seem to be distorting his views

Try to prove that I am distorting his views. For every assertion you make, I guarantee that I can show you in his online writing that he says exactly what I represent he says.

and by extension, people who dislike the GPL license by acting like they want to take everything private, commercialize it, and not return anything.

Yes, I think that taking public software private is a selfish act.

Actually, it's about freedom

Wrong. The BSD license is not about freedom. It's about one party giving a gift, and the other party taking it. Some BSD folks have forgotten that their software is based on the work of the U.S. Army through its DARPA grants to U.C. Berkeley. The taxpayers paid for the software, and was given to everyone as a gift. Most GPL software these days originates in private enterprise, and is written to solve an immediate business problem, other GPL software originates as a hobby or academic work. And a little of it is supported by government grants, for example Donald Becker's work on ethernet drivers was funded by NASA. But much less than with BSD.

the GPL tells me, "Better get a second job, because no matter how much time and money you spend improving this code, as soon as you release it, people are going to download the code for free rather than pay you a nickel."

If you just write software and do no other business, that may indeed be the case. People who profitably develop GPL software use it to facilitate some other business of their own. For example, a lot of the kernel development is paid for by hardware manufacturers who market Linux systems. Even Linus works for one.

The corpses of the Linux companies

Look around you. Linux use is growing 33% per year in the worst economic downturn in recent memory, and more people are doing business with Linux today than ever before. The fact that some companies went out is mostly because they could not compete, especially with the big companies coming into Linux. Most companies go out of business, you know, no matter what the industry. By the way, Progeny is putting money in the bank every month. We had to cut it to the bone to achieve that, but it's turning real profit when others only have a pro-forma profit. My investors in Linux Capital Group may well profit on their investment, the jury is still out.

the all-time low stock prices of the remaining ones

Well, a lot of the investors thought some of these companies had a "lock" on Linux. We don't want them to have a lock, and the investors have realized that. Not that the rest of the market is doing much better.

the decision by the owners of this very web site to start selling proprietary software

Hey, if I were VA I would have sold the company already. Their business plan denied that larger companies would get into Linux. If they want to produce a mix of propreitary and Open Source software now, there's nothing wrong with that. You're confusing me with RMS - I want Free Software and proprietary to co-exist, he wants it all to be free. But we both use the GPL.

the fact that GPL software is always left chasing the taillights of others in the industry

Oh yes, that's why Microsoft is copying the Tux web server features into IIS, and is still chasing the taillights of Linux in attempting to make its own systems reliable. XP turns out not to be nearly so stable as they said - its kernel crashes a lot.

A programmer asked how someone like him would make a living (i.e., not have to take on a second job) in a GPL world, and Bruce told him that he should start thinking about getting into the support or documentation business.

Sure, sell support or extra documentation for his own software. What's wrong with that? Did you think he wasn't going to support his own software? Or did you expect him to do that for free? He doesn't have to.

I still think he's Brett.

Bruce

Re:Who is Brett Glass?

[reverius]

An advocate of the BSD license? Reading his critique definitely could have persuaded me otherwise.

One of his primary arguments is that the artists (musicians) are giving something away (music) without any hope of compensation (money).

Isn't this kind of like the BSD license, which forces the artists (programmers) to give something away (source code) without any hope of compensation (contribution back to the community)?

I thought the primary difference between the GPL and the BSD license (besides all the holy-war crap) was that the GPL requires you to GPL anything built off of it, whereas the BSD license allows your stuff to be built-upon without contribution back to the original.

For instance... Microsoft (and others) have made use of BSD's TCP/IP stack, because it's licensed under the BSD (and therefore MS doesn't have to open-source all of their code built off of it like the GPL would require).

Seems to me that this music license that Glass is critiquing is actually much more like the BSD license than the GPL.

as a musician I think this is ridiculous

[metalhed77]

i am a musician, and in a band. I do want to be paid for my music, and I want copyright restrictions, i don't want people to obtain free copies of my work. Why? because I want money. Think of it this way, serious bands need money, because they devote all their time to making music, If my band could do that, we'd be much more productive. Oh sure you could cry that the bands are too rich, well that's the select few that are major bands.

When you buy an album forget that your paying the RIAA tax, your supporting a band that you love. This does nto mean you should let down the fight against the opressive RIAA and their tactics, but don't let hte music be the casualty in this world. Bands are poor, bands need as much money as they can get to perpetuate themselves unless they don't mind working a dayjob.

Re:Looking for an honest answer

[Nurgster]

Judging from the critique (I'm yet to read the license itself), the OAL would prevent them from selling CDs.

THe most important critisizm of the OAL in that article is the whole issues of covers. Even with the GPL, each contributors efforts is acknowledge (They do, after all, retain copyright). That doesn't happen with OAL (apparently).

Let's say, for example, that composer X writes a song with good lyrics, but a really bad melody. performer Y comes along, keeps the lyrics but writes a much better harmony for the song (take Machineheads cover of 'Message In A Bottle' as an example, not that there's anything wrong with original, I just prefer the cover myself). According to the critique, performer Y would get no credit for the song, but composer X might earn shitloads of money from the popularity of the new version.

That is a major flaw with the license...

silly?

[s20451]

Some of Glass' critiques seem a little silly - they're intended goals of the license, not flaws.


That's not a bug, that's a feature!

To claim that a critique is "silly" because you disagree with the author's point of view is rather condescending, and does not contribute to meaningful debate. Is the purpose of this license to create a moral imperative to release music for free (much as RMS uses GNU as a platform to argue the immorality of commercial software)? If so, the issues Glass raises merit serious discussion.

Traditionally...

[blkros]

music was free, and not copyrighted. Tribal music was for everyone to share. The old folk musicians, union organizers,anarchists, etc., made songs and let anyone use them, and build on them or even change them. Music wasn't about big bucks until the big companies got into it. It sounds like the OAL is trying to steer us back to sharing music, it may not be perfect, but first attempts at complicated stuff usually isn't.
From the summary of the critique(the page is slashdotted so I didn't read it) it sounds like the critique is not about the method of sharing, but, rather, about the sharing itself. If you don't want to share your stuff--don't. Just don't tell other people that they can't, or shouldn't.

This is an excellent question

[abe ferlman]

Here is a short critique of Glass's article:

Glass uses ad hominem attacks against John Perry Barlow, but fails to instruct us in any way as to why Brett Glass is any more credible than John Perry Barlow- in fact Glass strongly urges that anyone looking for legal advice regarding this legal license look elsewhere.

That's not what it's intended for.

[Bruce Perens]

I can't moderate up the AC who replied to this, so I'll just copy his response.

That isn't what the OAL is meant for. If you want to release a teaser, you use a different license.

Exactly. Thanks, AC. "Blamanj", I'm guessing that you only read the "critique", not the OAL iteslf, and thus you didn't pick up its intent.

Bruce

Re:That's not what it's intended for.

[blamanj]

You are correct, I was responding to the critique. But as I read the OAL, it still appears flawed.

For example, IANAL, but the scope of public performance appears to be completely undefined. If I release the song FOO on a MP3, does public performance mean playback of that particular MP3 only? Does it mean some band can perform the song live as long as the quality of their sound system doesn't exceed that of the original encoding?

I think this is a good issue, and I commend them for starting a public discussion, but I think it's far to complex to be dealt with satisfactorily in the few paragraphs they have written.

There's no way in hell ...

[uebernewby]

I'll ever release my music under this license. Why not?

grants the worldwide public permission to:

Modification

This means, you can mess my song up and release it under the same name. Like hell you can. Remix it if you must and release it under your own name, but don't make me responsible for what you do to it.

Note that this clause isn't saying the same thing as: you have the right to sample from this track and create a new track from the samples you've made - under your own name, which I'd have no problems with (unless people start sampling complete riffs, which isn't quite my taste), it's saying "redo a track released under this license any way you see fit and then release it as a "fork" of said track." This may be fine for software, but music has a very different dynamic, which I think the EFF people are forgetting. Artist + Track of which integrity has been preserved are much more important in music than it is in software.

good analogy

[abe ferlman]

People just don't understand. I don't mean they don't see it my way- I really mean they don't understand. Most people have never had a serious discussion about property rights and the way that the government grants monopolies to creators with the stated goal of fostering innovation.

Another more pithy way to put it is this: We don't subsidize the pony express now that mechanical transportation is available.

The bottom line is scarcity. gnovos is trying to say that some people think it's the talent that's scarce even if copies of their works are free, but that people are wrong and talent is not in fact scarce. This is basically right on the money. If talent *is* scarce, then the music industry needs to find ways to reward talent that make sense, like charging for live performances and other things that can't happen without talent, rather than trying to jealously contain free copies of recordings.

This analogy does not hold

[mjackso1]

You also probably signed an agreement when you took your job that released your copyright and designated your creative output as "works for hire". That's great for you! Unfortunately, there are many, many fewer businesses willing to pay a salary for a in-house composer to write music works for hire. Just because you signed away your copyright doesn't mean all programmers do. I know at least one former coworker that signed a deal where he retained rights to all his work.

"You on the other hand are only asked to create art for a few hours every so often. "

This is patently false. Most composers are not asked to create their art. They create it and then try to sell it. In circumstances where this doesn't obtain (recording contract, commissioned work), meeting the demands of the request for music is no less arduous than programming (don't try to tell me otherwise; I've done both). Even writing a decent 3 minute pop song is hard work. Much like programming, music does not spring fully formed from a wellspring of creativity. It requires practice (education), good basic themes (design), and editing (debugging). And, if you try it live, unlike programming, you have to be able to reproduce it in real time. Also, unlike programming, it's hard to find someone to compensate you for that time.

My fundamental objection to your argument has to do with your contempt for musicians and the difficulty they face. How many people write/play music as a day job to support their dreams of being a programmer? How many do the reverse?

Many people are satisfied to play music as a hobby, for friends or family, or take the occasional weekend warrior gig. For these people, something like the OAL is great. That's fine. Many devote their lives to it, hoping against hope that they'll be able to eke out a meager living. For these people, it would be insane to release under such a license. A statistically insignificant number make piles upon piles of money (though not NEARLY as much as their labels make off of them). For these lucky few, we can hope that they understand that their fans want the joy of sharing the music with their friends, a la the Grateful Dead. The real fact of the matter is that without musicians in the 2nd and 3rd categories, you wouldn't have anything decent to do while you hack away. So don't be a fucking ingrate, dig?

I do heartily agree with you that everyone is talented, and everyone is an artist. But we all have different talents in different quantities, and talent without hard work is worthless. Hard work takes time, and if you don't get compensated for that time, you don't eat.

There's no free lunch. Even authors of GPL software are getting money from someone for doing something, or they'd starve.

Re:Not for everything.

[mrogers]

In that case, keep your song to yourself. No teenagers with ukeleles will ever hear it, copy it, or mess it up. But if you choose to publish your 'memory' and sell copies of it to teenagers with ukeleles, it will become part of their lives as well as your own: fair game to be copied, parodied and modified by anyone who hears it.

Or are you saying that other people don't have the right to make songs that reflect their experience of life, just because part of that experience involves your songs?