Amanda Palmer discusses how she’s managing her entire music career through the Internet. The event is the #140 conference in Boston.

The best of artistry is a “self-making” activity which also creates a new audience.  Original acts that move audiences, and creative community, are two things that define her work.  To be smart but still wear the dress of life loosely is Amanda Fucking Palmer’s trademark.

I first saw her as a mute statue in Cambridge. No market research tells you there’s an “established need” for this. But it’s hard to get closer to an audience than that. Like stand-up, its a training ground to read a crowd and hone presence…and there’s no vanity in that kind of performance.  You know right away what works. Stuff that doesn’t work is a gnawing pain until it’s reworked and hitting it.

Rather than adopting the musical convention of rock, her punk cabaret style careens from stark and operatic, through folksy ukulele, to what I lovingly call “exhibitionist thrash.” As a guy who made his best creative mark throwing great parties in the South End, I get where she’s coming from.

So even though this video is Blair Witch Project-shaky, you can, see she’s holding herself back after putting forward some meaty positions.  Pay attention to when she just covers her mouth and takes it all in. Being a pro she kept quiet toward the end of this as her panelmates put little forward to advance the conversation from her starting point. Having the ability to be a statue must occasionally be useful.

I couldn’t help but feel some irony as Amanda sat next to one of the guys who advises the Artist & IP Law Visionary Prince (who famously declared “the Internet is over”) as they talked on about how digital technology is making superstardom a thing of the past.

Versatility is a virtue, and on Tuesday Amanda Palmer was a pro. She was credible, smart, cool, and she played nice. What’s not to like about that?

Featured:
Amanda Palmer (@amandapalmer)
Ariel Hyatt (@cyberpr)
Matthew Ebel (@matthewebel)
Ted Cohen (@spinaltap)

I was part of a manic panel discussion on sales strategies for a Web 2.0 world.  Amidst the usual Rorschach of social media advice were a few killer moments I have to share.

Framing Idea:
What’s the result of an abundance of information? Attention scarcity.
This is what makes insight a premium in the digital economy, and it makes simplicity the good manners of our age.

So What Should We Stop Doing For Simplicity?
My answer was “stop writing so damn much.”  I worked in my steadfast mantra “reading is for suckers” and suggested that if attendees cared about their readers and SEO, they should cut their copy in half and make a video or infographic.  The goal is to make such a great illustration or video that even competitors wouldn’t be able to resist linking to it or copying it.

This brought a follow-up question: “Where can I see a good infographic?” I probably should have mentioned a nice collection such as the one at Six Revisions.  Instead, I offered a single beautiful example, Flint Hahn’s Burning Man Infographic. The next follow-up: “What’s Burning Man?“  Somehow I was taking us way off track.

How Can We Make Email Marketing Work Better In a Social World?
My advice was to build a personal relationships with readers, to be real and relevant, and worry only about making kick-ass communications for the small group that is vital to their livelihood.  Again I was asked for a good example.  I could have referred to the nice marketing from Marketo that made the whole room turn out. Wouldn’t that have be supremely ingratiating? Do you think I did that?

Nope. I said “the best emails I get are from Amanda Palmer,” whose messages include attitude, offers, and generosity that an ordinary marketer would simply ruin.

That’s right, I could have said something nice, but instead I just begged the question ….”Who’s Amanda F’n Palmer?”

My takeaway, other than that my obsessions are thankfully obscure, is that good marketing is hard. Like any art, it is a unique use of craft to move an audience.

There’s no map to do it.  In fact, good marketing changes markets — so whatever worked last time will likely be different next time.  It might be better or worse.  Good marketers stare into the abyss and use their thoughts and craft to clarify a desirable prospect. Your thoughts, your market, your mileage may vary. That’s the game.

The currently zillion channels of social media beg us to commit random and fruitless acts of marketing.

But when an artist gets their frenzy behind one big idea the result is nothing short of spectacular (watch a fine music video from you-know-who).

Naughty or Nice?
The recording industry has described the free airplay their songs receive on AM and FM radio as “a form of piracy.” It has sued customers for copying purchased CDs to their own computers, and for selling or simply tossing out unsolicited promotional CDs.

In a year in which arguably the best album is Feed the Animals, a self-issued, “pay what you want” project by Girl Talk, it’s safe to say the recording industry is getting very little good news for Christmas.

Billboard reports:

1. Music sales were down anywhere from 10% to 30% and hit albums released for Black Friday didn’t perform to expectations.
2. Label executives report that at big boxes like Wal-Mart and Barnes & Noble, sales for the Black Friday weekend were off anywhere from 30% to 40%.
3. At New England-based Newbury Comics, sales were down 21% on a comparable store basis for the last two weeks of November, while music sales were down 28%.

eMarketer reports:

1. New sources of revenue streams are not enough to pick up the slack from free-falling CD sales.
2. Worldwide spending on all recorded music will decline—falling from $31.8 billion in 2006 to $26.2 billion in 2011.

Anatomy of a “Dinosaur Business Model”
This week, the Motley Fool published an analysis of the recording industry’s prospect as a long-term investment. It’s nice to see some non-lawyers simply evaluating the impact of the industy’s legal and business moves. Here’s the Fool’s operative sentence for investors:

The recording industry strikes me as a perfect example of the type of non-innovative industry that long-term investors should avoid like the plague.

There’s a ton of innovation in entertainment. Gaming is forecast to be resilient; there are lots of new film and broadcast distribution models. Even in music, new models are growing. But since the recording industry has resisted innovation, these new channels will force competition, and in some cases will simply go straight to artists, cutting out labels entirely.

There’s great music to look forward to, but for the recording industry perhaps Robert Cray said it best: “The forecast calls for rain.”

Wylie Gustafson’s famous Yahoo yodel has been named the first soundmark in India.

India defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person to those of others.” Yahoo used musical notation in its application to represent its famous “Yahoo” yodel. The application took three years to approve, and is followed by Nokia’s distinctive ringtone, which is still in process.

Visit the USPTO’s collection of famous soundmarks.

I’d encourage you to steal Girl Talk’s breakthrough fourth album, but you can’t. It’s pay-what-you-like, so if you like, pay $0.00 to start listening and return to toss in a payment later. Start your download during this golden time before DMCA takedown notices and TROs make this a coveted, though still free, file.

Under the name Girl Talk, Greg Gillis creates music out of dozens of songs mashed together on each of his tracks. His fourth album, Feed the Animals, uses over 300 samples, much of it easily recognizable pop music which is recontextualized into 3-4 minutes musical cultural reference montages. He releases his work under a creative commons license on a “pay what you like basis.”

A biomedical engineer in Pittsburgh by day, Gillis is now making the charts in Rolling Stone and accumulating praise for integrity and creativity, both in his art and in his approach to copyright from unusual sources. The Wall Street Journal, not the usual source for breaking music news, describes Girl Talk’s work as “propulsive dance music” in a lengthy and enthusiastic article.

Then there’s his Congressman, Mike Doyle, who offered perhaps the coolest congressional testimoney, referencing Paul McCartney’s admission that he nicked the Chuck Berry bass riff for the Beatles’ hit “I Saw Her Standing There” in testimony about RIAA’s over-reaching tactics to enforce copyright. While established artists have used their popularity to bypass labels and offer works on a “pay what you like” basis, this may be the first case where a totally new artist will use this model to gain fame and substantial sales.

Some days, following online copyright law is both cool and fun. Enjoy the tunes!

Its kind of the opposite of, “do unto others”.

When Universal Music lost an infringement case to Bridgeport Music, it did an unexpected thing. It apparently made a successful case that punitive damages tacked on to statutory damages are unconstitutional.

As a plaintiff, Universal has argued in other cases for very high fines. It is, in fact, currently in just such a case, where its arguing against substantially the same constitutional argument and in favor of even larger fines than those they claimed to be unconstitutional.

Mike Mesnick in Tech Dirt points out:

In that case, Universal Music is asking for fines that are more than 1,000x the actual damages. Pretty high, right? So what were the damages that Universal Music (and the court) found so unconstitutionally high in this case from Bridgeport? Turns out they were about 10x the actual damages. Funny how that works.

I imagine that anyone defending against a Universal copyright lawsuit will want to use their own pleadings as a starting point.

It seems the RIAA is trying a surge of their own by increasing the number of take-down notices to universities, estimated to be up by a factor of 20. According to Wired.com:

University of California at Berkeley’s chief information officer Shel Waggener confirmed he’d heard of the spikes and suggested there was a political purpose driving them.

“Public universities are in a unique position since the industry puts pressure on us through state legislatures to try to impose what are widely considered to be draconian content monitoring measures and turn us into tech police forces in support of a specific industry,” Waggener said.

The RIAA is also backing legislation in states such as Illinois and Tennessee that would require schools that get a certain number of notices to begin installing deep packet monitoring equipment on their internet and intranets.

The little alarm went off on my mental control panel next to “reasonability.” I don’t see what’s wrong with take-down notices if copyrighted materials are being illegally distributed – not made available, but distributed. Therefore, evidence of distribution must also be included in a take-down request sent to universities.

As for deep packet inspection, that may very well cross a line. However, one could make the reasonable statement that, whereas the “making available” argument does not hold water, it’s still unwise for a university to afford students the possibility of abuse if there’s a clearly demonstrable history of it.

University networks are controlled-access networks, owned by the universities, who are liable to some degree for their use. Frankly, file sharing with external sites is a red flag. If there is proven illegal file-sharing at a specific university which uses its network, and that university takes no reasonable action to prevent such future abuse, it can be argued that it is an accomplice, or at least negligent.

What’s a university to do? Monitor the use of its networks and look for recognized threats to its integrity – including legal – that would compromise the network or the university, and provide for consequences to those found abusing that network?

Reasonable? I have a tough time arguing against that.

In the court case of Atlantic v. Howell, the judge denied a request of summary judgment against the Howells. The court decision was surprisingly incisive, rejecting the RIAA’s argument that merely leaving copies of copyrighted works in a place where someone might copy them, without any evidence that they did, is a violation.

This so-called “making available argument” has been shot down twice recently in courts, after February’s Atlantic v. Brennan ruling. If sustained, the RIAA’s cases will require proof that files made available are actually distributed.

In a recent reversal of a previous court decision, Judge Neil Wake has ruled that:

“Section 106(3) of the Copyright Act of 1976 grants to ‘the owner of copyright … the exclusive rights to … distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

The statute does not define the term ‘distribute,’ so courts have interpreted the term in light of the statute’s plain meaning and legislative history. The general rule, supported by the great weight of authority, is that ‘infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

Music giant EMI is demanding that music file storage company MP3tunes turn over all music stored on its servers. Apparently, EMI is demanding this irrespective of who owns, or published, the music. What is unclear is what “hand over” means in this context. Clearly, though, it does mean EMI seeks to violate the privacy and personal property of MP3tunes subscribers.

MP3tunes allows its 125,000 users to back up their music files online in case their PCs have a meltdown, and affords the ability to transfer music to different user-owned devices in a low-hassle way – called “place-shifting.” It is not a file-sharing service.

This case underscores the differences between old and new media in terms of copyright: In what manner do intellectual property rights follow the work product, rather than the form it takes?

In a blog post, MP3tunes CEO Michael Robertson describes a court ruling that denied a request by EMI to compel MP3tunes to fork over stored music files:

In court EMI v MP3tunes, EMI demanded that MP3tunes provide copies of the more than 100 million songs in their subscribers’ personal music Lockers. MP3tunes offers a free and paid service for people to store their music files digitally so customer or music fans can both keep them backed-up and listen to them anywhere through a Net radio, like those from Logitech, Reciva or Terratec, or from any Net connected device, such as a Wii or PC. The newest feature allows subscribers to automatically sync their music files to a device of their choosing so all their music is where they want it to be, without the hassles of running software and plugging devices in via USB cables. All access to a music Locker requires a unique username and password, and there is absolutely no sharing between Lockers.

[ … ]

No corporation should have the right to demand the content of tens of thousands of personal accounts be turned over to them. There’s no reason to suggest that the users are doing anything but listening to their own music collections in a modern manner. There are millions of Gmail accounts that have MP3 files stored in them – same with Yahoo, AOL and Microsoft’s email and hosting services. If EMI can gain unfettered access to wantonly look through personal accounts on MP3tunes those services will be next.

I can’t see any legal argument on behalf of EMI here, especially since the courts have struck down the RIAA’s “making available” argument. Since there is no sharing among MP3tunes users, the only motivation I can see is the duplication inherent in backing up a file, as well as that used in the process of place-shifting a music file from one device (like a laptop) to another (like an MP3 player).

In essence, the recording companies view music and format as one and the same, whereas the public sees media as merely a representation of the music they purchased – and therefore, that they should have the ability to change that media information from one form to another.

If the market is allowed to decide, the consumer will likely win this one, unless Congress steps in and does something typically underhanded and short-sighted. Gulp.

Image: CD on a leash

Universal Music Group (UMG) is suing Troy Augusto, owner of Roast Beast Music Collectables, who sells promotional CDs on eBay. UMG claims promo CDs are for personal use only and, according to the agreement contained thereon, cannot be redistributed —including being sold, given away, or even thrown away. The discs are usually sent out to music publications and radio stations. But as promotional materials, are these discs no different than brochures or product samples?

Naturally, the EFF is charging to the rescue. Earlier this month, they decided to defend Roast Beast, counter-suing UMG for abusing DMCA takedown notices. From the EFF rallying cry:

The “first sale” doctrine expresses one of the most important limitations on the reach of copyright law. The idea, set out in Section 109 of the Copyright Act, is simple: once you’ve acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. In simpler terms, “you bought it, you own it” (and because first sale also applies to gifts, “they gave it to you, you own it” is also true).

Seems obvious, right? After all, without the “first sale” doctrine, libraries would be illegal, as would used bookstores, used record stores, and video rental shops (and their modern variants, like LaLa and other CD-swapping communities).

But the copyright industries have never liked first sale, since it creates competition for their titles (you could borrow it from a friend, pick it up at a library, or buy it from a used book seller on Amazon).

On a separate front from the fight for Section 109, consider the possibility that these CDs were unsolicited – initially distributed by UMG as part of a marketing strategy. No contractual obligation can possibly exist without a meeting of the minds, and since the objects were not requested, this didn’t happen. In addition, there is no transfer of value for a consideration. (In fact, as the CDs were unsolicited, doesn’t this make them spam?)

There is no more a license here than if I delivered a 30-foot-tall robotic moose to your home and then started charging you $1,000 for the Mechanical Moose of the Month Club.

The license also states that the discs can be taken back by UMG at any time. So not only is UMG claiming the unsolicited promotional materials sent out are actually loaners, but now the hapless recipients must assume the burden of their storage.

Considering the various forms of spam I receive, all I can say is, “Stop sending me your darn discs or I’ll charge you a storage fee … and get that damn moose off my lawn!”