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

Seriously

[niekze]

It is about time. I make music with various trackers and midi crap. I give the music away. Anyone who remembers the old Amiga mod scene should welcome such. Take a look at some free music: www.kosmic.org (they've done it all. from 2 channel mods to 32 channel xm's released in mp3 format. These guys rock. Too bad I can't find old Future Crew releases)

This is our answer to the big music companies that want to revoke our rights. "Thanks, but no thanks. I'll find my music elsewhere.

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

[Zico]

Most people don't take him seriously.

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

You seem to be distorting his views, and by extension, people who dislike the GPL license by acting like they want to take everything private, commercialize it, and not return anything. Actually, it's about freedom and being able to do whatever you want with the code, while 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." The corpses of the Linux companies, the all-time low stock prices of the remaining ones, the decision by the owners of this very web site to start selling proprietary software, the fact that GPL software is always left chasing the taillights of others in the industry, they all bear this out.

I'm sure some people will think that "second job" comment I made above was a snide little slam, but if you read the Silicon Valley roundtable, then you'll know what I was talking about. 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. Yeah, I'm sure the programmers of the world are looking forward to that...

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

links

[Jim42688]

faq about oal here.
interesting discussion on list group here.
radio station on live365 playing OAL here.

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:as a musician I think this is ridiculous

[gnovos]

Bands are poor, bands need as much money as they can get to perpetuate themselves unless they don't mind working a dayjob.

Hey, I am poor. I would love for someone to come along and pay me for my *cough* Creative Talent. But, guess what? Money is not an entitlement. You have no god-given right to profit off of your creative juices just becuase you are you. You have to earn money just like the rest of us.

Think of it this way: I am an artist, I go to work and create beautiful, elegant art all day long, and I don't get to put my name on any of it and I only get a salary for what I do. NO copyright for me! Does that sound wrong to you somehow? I'll tell you why: Becuase I say "artist" where you would say "programmer".

Just becuase your "art" is useless and mine is functional does not make us any different. The difference is that I have to go to work for hours and create art every single working day of the week. You on the other hand are only asked to create art for a few hours every so often. You have ZERO right to make money just because you think you deserve it. You have to earn it just like the rest of us.

The real problem is, organizations like the RIAA have built up the notion in your (and my, and the whole world's) head that being "creative" is some magical ability that few people possess in any quantity. Nevermind that for hundreds of thousands of years humans have been artistic just fine without the need for superstardom. Today you we taught that musicians/actors/artists/etc. are so special and rare that we must pay a hefty percentage of our GDP to thier masters simply because who knows when such talent will ever been seen on this earth again, right? Well, I'm sorry to break it to you, but we are all talented, we are all artists. We can't help it. Making money off of art is like making money of of breathing. Everybody does it, no one has some "right" because they happen to have asthma.

By trying to make a living off of music, you are simply perputrating the notion that music is something that is rare enough or difficult enough to make a living doing. You are contributing to the death of music and humanity's musical soul far more effectivly than any sort of "Open Music License", my friend.

GNUArt !

[mirko]

> But is a license intended for software a

good starting point for a license for music?

Yes.

We, at GNUArt, directly use the GPL to protect Art.

After discussing it with RMS, we agreed it would be possible:

• The art to be protected is considered in a virtual, infinitely copiable form
• The source code of art is clearly defined as "whichever information needed by another artist to modify the original"

Lots of artists trust us, just browse our gallery for free "GNU" Art...

Karma whoring can be fun...

[Chops]

Agreed. Here's a bit by Brett in which he lays out his views on the GPL ("The GPL ... was designed explicitly to hurt programmers' livelihoods.") and Stallman (who "says that good wages for programmers should be 'banned.'")

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.

The OAL appears to have some real flaws

[blamanj]

Well, if Glass is correct in his summary, then I would have to say that the very first bullet point:

• You cannot allow free copying of a recording but keep the rights to the song that was performed in the recording.

represents a fatal flaw. This would imply that you could not release a "teaser" MP3 , say one ripped in a lower audio quality, and still retain your other copyrights to the song. That seems shortsighted and unfair.

Not for everything.

[eAndroid]

I think it is obvious that this license is not for everyone. Just like the GPL (ducks a swing from RMS). I both write software and record music.

If my music is, for example, written for a game or a web site or something where the music is basically ancillary to the main part of the entire work then I would have no problem releasing the audio under the OAL. However when the audio is the main part then I do not want that audio taken and molested by anyone who wants to harm it.

When I write a song at 2 am with my guitar it is very spiritual. I don't sing mathematical truths or other factual data, I sing a unique interpretation of my life as I have experienced it. This song is not something that anyone else can understand the same way I do. Other people may be able to identify with it and share some common ground, but no one can truly feel the same way I did when I recorded it - if they did then they would have mysteriously written the exact same song.

I want to keep these songs mine, like journal entries, as a collection of memories. I don't want some teenager with a eukalalie recording a modified version of my memory.

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.