00:12 Katherine: Hi everyone, thanks for joining us again on the Reality 2.0 podcast. I'm Katherine Druckman, I am as always with Doc Searls who you all know, but I am also today with somebody who you might not know named Damien Riehl and his cohort Noah Rubin. They have a very interesting project actually and I'm gonna link to your Tedx Minneapolis talk in our description.

They are trying to fight the good fight with regard to music copyright. Their project is All the Music and you can find it at allthemusic.info. And before I go into any more detail and screw it up, I'm going to hand it over so you can tell us a little bit more about what you're working on.

01:15 Damien: Great, and over to Damien I assume. This is Damien Riehl and I'm really thrilled to be on here and my colleague Noah and I have embarked on this project, which is really a labor of love for both of us. We're both musicians and we're both technologists and in addition I'm also a lawyer, so this kind of is in the sweet spot of ikagai is a Japanese term of things that you love, things that you get paid for and things that you're good at and things that the world needs.

The middle of that Venn diagram is something at a Japanese concept called ikagai.

So, this music melody copywriting thing is really in the center of that for me. So a brief overview of what it is, is essentially, we have taken mathematically. Every melody that both existed and hasn't yet existed and brute forced it. So we have written to disk. Every melody that's ever been in every melody that hasn't yet been but it's mathematically possible! Written it to disk and as soon as it's written a disk is copyrighted and Noah and I have placed that in the public domain to help songwriters be able to write their music without fear of being sued for copyright infringement for accidentally using the same melody. Someone else even if they haven't heard that other person's song.

02:19 Doc: This is Doc. It strikes me like a game of battleship. You remember a battleship of course, play it on paper. You've got this great grid in your talk where you have the green spaces which are the ones that are not yet occupied by a melody and the red spaces, which are really the landmines that you call them. land mines, but they are where... The battleship gets hit.

You park your battleship over there. And it actually reminds me a little bit of the term, which you'll be more familiar with than I am of submarine patents where already... You don't know, you think you stepped on somebody's patent until they suddenly come up to the surface and say, "Hey I've got a patent here."

I don't know if it's and analogous issue with copyright where somebody's sitting there like a submarine and waiting for somebody to step on it.

What usually happens is the Chiffons recognize or somebody who owns the rights to the Chiffons song recognizes that George Harrison's my sweet Lord is too similar. And then the most famous case like that takes place, which I thought was totally bogus by the way. I'm old enough to remember both of those... But you're actually staking out first territory here. How are, so many questions about it? But I guess the first one might be How are you looking for this to play out in the world? It's four or five years from now, what has happened in the music business, how is this being put to use, what are the new arguments happening in the legal sphere? There are a lot of directions you could go with that.

03:56 Damien: Sure, and I think the first direction I'd like to go is essentially what you're saying this idea that the light bulb turns on to realize, "Oh this song does sound like that other song in a very submarine kind of way.

I liken it to when people first realize musicians, often know that Twinkle Twinkle Little Star" is the same as Ba Ba Black Sheep Have You Any Wool, which is the same as A-B-C-D-E-F-G. Each of those songs these three songs have the very same melody, but when you sit and tell that to somebody on the street, they say, "Oh my gosh, I've lived for 50 years. I've never known that. That's the same melody. And the reason you don't know it is 'cause they're completely different songs. And so when you talk about the Chiffons and you talk about George Harrison, I think that the realization is the aha also known as the gotcha moment and that's where the Chiffons... Someone related to that team realized. Oh gotcha, yeah you happen to use the same one as I do, therefore you're gonna go down.

So any rate, so what Noah and I are really trying to do is trying to eliminate those gotcha moments, especially for songs that have never been heard before, or maybe have been heard and forgotten about and living somewhere in the subconscious.

So we really want to be able to be a resource on our project to be able to help people that find themselves in the untenable position of the current state of law. To have to prove a negative saying that I have never heard the song before in my life.

And how does one prove that one has never heard of song before in one's life?

That's thing, number one, number two is, how do if one has heard a song say 20 years ago, how does one prove that one was not thinking of that song when making their new song?

So when you ask, "How do we hope this plays out? We hope to be a resource for people in that position to be able to say music I take that back, on melodies are mathematical. As Noah I have demonstrated we have brute forced every melody for an octave up and then 12 notes across.

We have mathematically exhausted every one of those.

So, we'd like for lawyers and judges and juries to say, rather than these two songs sound similar being the result of someone purposefully stealing music, maybe is the result of only so many notes out there to be able to do. And maybe, you landed in the battleship board in the same spot as another person.

06:23 Doc: So how did you discover the ones that were already occupied?

06:29 Damien: So that's a fine question.

We have brute forced to all of them.

So, whether already occupied or not, already occupied the occupied spots are something that perhaps the music Modernization Act database that they're building right now, perhaps that's something that they will want to quantify which melodies are actually contained in that but I think probably not and probably the reason that they're not gonna quantify it either is because how does one be able to say, "Here are all the melodies in my song, here's every guitar riff, here is every little nuanced ooh that I sing.

It's really being able to quantify what is red on our data set is really difficult. And certainly for the entire copyrighted, currently copyrighted music, even being able to quantify which songs are is still in copyright or not, that's a hard enough task on its own.

So, then try to add on top of that the complexity of being able to say, "Here are all the melodies for all the songs that are currently in copyright.

That is a task that we're arguing isn't even necessary, because under two scenarios, scenario one, we get copyrights in everything we've created and then put it in the public domain that's scenario one. Scenario two is that we do not get copyright in what we've done because we've done is mathematical and fact-based and because fact-based and because unoriginal therefore un copyright-able and so we think that under this scenario 2, we also win because then it's essentially proving our case that melodies are math which are factual which are uncopyrightable.

08:11 Doc: So you have, it's interesting you've sort of looked at two different ways. This can play out and you, in fact, this list that we're both on, you mentioned these are arguments in the alternative where you're kind of basically presenting both this could go either way, and the context of which you're looking at or develop consciousness in the marketplace of both the problems that attend to having old copyright law in a digital world, and the practical concerns of an artist who might want to make sure that whatever they've come up with is safe in some way I guess that is close enough.

08:55 Damien: That's exactly right, yeah. And we really these arguments at in the alternative or something that lawyers are very familiar with and lawyers and judges get that right away, but I think to the general public, it seems odd that I would argue on the one hand, it is copyright-able and then we put it in the public domain and then on the other hand, it's not copyright-able and therefore it's free for everyone. The dichotomy of that is kind of hard for non-lawyers to be able to get their head around but it is a very common legal concept and just because I argue one doesn't mean that I've ceded ground on the other.

09:28 Doc: Just so I get it straight. You have put these in a public domain though, right? You have taken this corpus...

09:35 Damien: That's right, That's right, we the public domain, that's right, we've taken the entire the entirety of all the music work... We have then designated them creative commons zero. So at least to the extent that the law recognizes creative commons zero as designating for the public use. We have done that.

09:52 Doc: I wish I had a tape of this, but back when I worked in radio 10000 years ago we did a joke ad for all the world's most beautiful music all at once overdubbed and infinite amount of a crap and it sounded like a car crash. Anyway.

10:09 Damien: and strangely, if you took all of each of the melodies that we've done, certainly if you play them all together would sound like a car crash. But each of the melodies that we have because they are, at least one of the data sets is the diatonic scale. Every one of our melodies sounds like something that could be in the real world.

10:27 Doc: That's interesting, so I had a question about the chromatic scale, because you could be going there and there's lots of music that that's less popular but there are a few that have accidental in them and so forth, where you drop out of the scale and go to...

10:44 Damien: That's right and that's why we actually did the chromatic scale, as well, so we talked earlier about eight up and then 12 across for the chromatic scale. We did 13, so the 12 tone scale plus the 13th on the top and then we went 10 across. So that is in our data set as well.

So yeah, we covered jazz, we covered classical... We cover key changes really anything.

11:04 Katherine: So there's something very interesting to me about this. So without the benefit of the visuals, unfortunately the people listening can't picture it... But imagine you have this grid and imagine like Doc says it's a battleship playing board or the game minesweeper let's say, and you have all these spaces that are already taken, which leaves you with a bunch of green spaces that are not... And what I'm wondering, do you see this is a resource, let's say I'm writing a jingle, I'm looking for something I want to protect my, I want something in the public domain, I want something that it's not going to come back to haunt me later, legally. Do you see this is a resource for somebody. A library of public domain melodies that aren't taken. Do you see people using it that way?

11:45 Damien: That's a really good question, and you talked about the talk and I would recommend it maybe your listeners could hit pause on the podcast and watch the TED talk.

11:56 Doc: I wanted to say in fact, when when we publish it, we might even say, Okay, stop now before you do this and watch the talk. [https://www.youtube.com/watch? v=sJtm0MoOgiU]

12:02 Damien: I gotta say thank you. And so I think that it'll make the rest of this podcast more enjoyable 'cause I think they'd be able to more easily visualize the green spaces and the red spaces, and that sort of thing.

But I will say... So to answer your question, I don't know if our data set is a really good resource for someone who wants a public domain item to be able to pull from... And because I... Like I mentioned earlier, we haven't designated red spots or green spots so really we haven't at this point and nor do I anticipate that we will ever really say, "This is an open spot, because who knows whether it's open or not. And I talked in the TED Talk, Tedx talk about red spots being taken green spots being open. But after the talk, I actually had a realization that this a third element and that is Beethoven's 5th for example, was copyrighted at a point and now it's in the public domain.

So, Beethoven's fifth is somewhere on that data set, and so maybe that's a grey spot and then you have a third color maybe that is a spot that it was copyrighted and has entered into the public domain, and so maybe those spots would be what you're talking about that maybe I can try to find those gray spots that have lapsed into the public domain. But there's a big question that has actually been...

Yeah, I'm saying go ahead.

13:20 Doc: And made safe I guess in a way.

13:23 Damien: That's right I made safe, perhaps. But there's a debate going on right now that Doc I are on a list as to whether if something is public domain can someone essentially, take it out of the public domain by creating a new work on top of it? And the way that this plays out is in two ways, Number one is that someone has never heard Beethoven's 5th, or substitute a obscure 16th centuries song that haven't heard, but they happen to write the same thing as that thing. So that scenario one is Can I get copyright on something that has lapsed in the public domain? That's thing number one. Thing number two, is can someone go into our data set and be able to look at Noah's and Damien's All the music data set, find a melody that they think is good and then record it.

And then by recording it, does that take it necessarily from what some might argue as an unoriginal un-copywrightable element and then does it magically become copyright-able because a human was able to make a recording of it. So, those two ways that maybe something that is not copyrightable, either public domain or arguably in the data set can it be transformed into something that is copyrightable by virtue of somebody recording it?

14:38 Katherine: So you mentioned in the talk also that you've opened your code and this may be a question for... Noah actually, so I'm wondering so you speak of in the future, maybe we could label these things this way, and do this that the other thing but I'm wondering, is there something that you would hope that someone would take your code and do with it? Is there a way that you would like to see it expanded? We do have a lot of very smart technologists. Who... Listen, I wondered if there was anything, if you had a...

15:05 Damien: I'm really happy you asked this, because Noah is probably one of the... Not, I said One of... But he is the smartest coder, I know bar none so I would be happy to let... Noah I take that the question...

15:16 Noah: Yeah, can you guys hear me okay?

Yeah, yeah, so the whole point of putting it out to the public, is for people to do effectively whatever they want with it, assuming they're doing it for the public. Good, my personal hope is that people take the code and they make it better, they make it more efficient, it will allow people to generate a larger set of melodies. Potentially. Then we did if somebody was able to take whatever we did, 67.8 ish billion melodies and take that and expand it. I would love that, we have a... We have plans, ourselves to add functionality for example, to be able to generate rhythmic variations, and in addition to pitch variations and expand the datasets that we're generating and all of that of development is happening on GitHub. It's been really nice to see some of the people, engage with their project on get up to... And sure, we have some stuff that we're working on to try to expand the functionality available to people than people wanna help with that. I would absolutely love that.

16:25 Katherine: That's great. Well, we'll be sure and post your Github link then too.

16:29 Damien: And that's in to add on to what Noah just said from the beginning of our project as we were sitting on a client's near clients location, we really always hoped that this would be something that would go beyond us to be able to motivate people to be able to rally them around what we think is a big problem in songwriters and being able to help songwriters that feel like they have targets on their back so that to the extent we can get your listeners and so that are technically inclined to be able to fight this good fight with us, we would love or you'd be able to build upon what we've done, and be able to work with us to make something even better.

17:05 Doc: More questions, one... Just as a parenthetical remark is there are things falling into the public domain or aging into it, I suppose what is that period like? 50 years, 100 years and...

17:19 Damien: Well, depends on when the work was created, if something were created today would be for a human author, life of the author plus 95 years or for a corporate author almost 100 years after creation.

But depending on if it was made... So generally things falling into the public domain today were from the 1920s.

17:37 Doc: Yeah. Okay, so that's one thing. Another thing is you mentioned in your talk that Sound Cloud is seeing 50 million new songs per year. Wow, that's just songs that that's just like podcast, like ours, or some other thing that's in Sound Cloud?

17:55 Damien: It's a good question. And so the number I saw was 50 million songs, per year, and I don't know if the person collecting that data was using files as a substitute for songs, so I don't know whether it's 50 million files or 50 million songs, and a lot of the songs and say, for example, if those were all 50 million songs, of course some of those are gonna be cover songs they're not all gonna be original songs. So there's some subset of 50 million, I don't know how large that is, but some subset of new songs that are being put into the world every year, but even a subset of 50 million is a pretty large one. So the point of my talk is that we're running out of open spaces and each one of those songs, probably is infringing upon, unknowingly infringing upon any number of other songs, even if that song writer has ever heard the other song before.

18:50 Doc: So this is a relatively new thing, I think your talk, went up like on the 30th, it was January, it wasn't it or something that it...

18:58 Damien: January 3oth. Yeah, so it's... It's been about three weeks now.

19:01 Doc: So what's the response been so far? It's still fairly new. And where does this stand, so far?

19:08 Damien: So far it's been overwhelmingly positive. I think Noah and I have been pleasantly surprised how many people... This is resonating in a positive way and we've always thought that it should be a positive response because Songwriters are not only getting sued all the time, songwriters are not only suing, but they're also getting sued. I often make the reference that this is a circular firing squad. A copyright lawyer named Howard Knopf... And at least the first that he's the first I had heard of it, but the fact that you might be sueing as a song writer today but you might get sued, tomorrow because for something that you may have accidentally infringed... So song writers in general I think are aware of being on both sides of the gun if you will. And so I think because of that, they've resonated pretty strongly saying that, the downside of saying melody equals fact, equals un copyright-able that downside of maybe not being able to sue over melody is outweighed by the upside of not being sued over something you've ever heard or heard about and forgot.

20:13 Doc: I would imagine. And I don't know, 'cause I'm not only not a lawyer, I'm not a musician, I know something about music, but I'm not a musician, I'm like the guy you bring in with the tambourine or something like that. I can do that, but I'm thinking the fantasy I have here is that here's an ambitious songwriter who might be actually be thinking, "Oh my God, I don't want this to get to popular because suddenly, I've got a target on my back. Or if somebody's already successful, like like a Taylor Swift, they're a target obviously George Harrison was a target that was a gotcha or as some sort right? Let's get a few more books out of this old song we had.

And I mean if you could do anything to stop that, that will be fabulous. And by the way, I think it's dried. Great, so I give you positive feedback.

21:07 Damien: Sure, sure, and I think that is exactly right what you said that I as a songwriter, am probably fine until I get too popular, and then I have a target on my back. And so then you think about how this plays out as litigation element, and I mentioned this in the talk, but there's almost all of these cases settled before they even get to court. It happens that a plaintiff's lawyer sends something to the song writer that has just made it big saying. Hey, your song sounds a lot like my client's on make us a co song writer.

And if you're an up and coming artist that this maybe is your first hit, you're in an untenable position because you're faced with the average legal fees for defending what would need to be defended, to say. I've never heard the song before. Cost between 500,000 and 2 million dollars musicians don't make that much money, in these days.

And so, if you're facing down the barrel of a cease and desist letter from this lawyer am I gonna roll over and make them a co-songwriter or am I gonna spend the 500 to 2 million in legal fees to fight something where in the end I win only if I prove a negative, if I say that I've never heard something before in my life.

And so it's not surprising that almost all of these cases end before a complaint even gets filed in court, so people have some negative feedback that we received is this doesn't really happen very often. It only happens to a Katie Perrys or It only happens to the Coldplays. Those are the ones you hear about, because the Katie Perrys have the money to be able to fight back and say, We've never heard your song before.

Almost all of the other cases settle right away because there's not enough money on the song to make it worth while to fight.

And I don't have any knowledge about the Tom Petty and Sam Smith case, but I would speculate, and this is a pure speculation that if I were Sam Smith, I would do that math in my head. And it's not surprising that he did make Tom Petty a co-songwriter because there's really no reasonable way to be able to defend against that as Katie Perry found out.

23:14 Doc: So I have the facts right on that Tom Petty got in touch with Sam Smith or vice versa, which was who came first and who came second.

Oh, yeah, that I think so sorry about that.

My usual correspondent scam likely.

23:34 Damien: I've heard from that guy. You don't wanna take that call. The Tom Petty Sam Smith I only know through reporting, this is not first-hand knowledge, this is only what reporting I've read, but what I've read reportedly is that Tom Petty in the 1980s had a song called Won't back down. No, I won't back down. Fast forward to 20, I wanna say 2015, Sam Smith 22-year-old at the time, had stay with me. Won't you stay with me? So Tom Petty who had this hit for 30 years, allegedly reached out to Sam Smith saying, "Hey you copied my song. I don't know if it was accidental or on purpose, but it sounds like my song, and again reportedly Sam Smith reportedly said, I've never heard your song before in my life, that song was written before I was born. There's no way that I could have copied you because I never heard it before, so I then it's not, it's all public knowledge that Smith made Tom Petty a co-songwriter and they resolved their differences therefore a half or whatever percentage that they worked out. Part of... Sam Smiths royalties for that song went to Tom Petty. In my perspective, Sam rolled over because... And if I were Sam Smith, I would have rolled over to because it wouldn't be worth spending. The 500000-2 million to roll the dice to prove a negative.

25:00 Doc: Especially, if Tom Petty had that kind of money and he didn't.

25:05 Damien: That's right, and he has a big label behind him, and I'm a 22-year-old guy who just started to make it big and I don't want this as a distraction.

And by the way, I wanna make it big in my label, so I'm... I gonna wanna upset the label that Tom Smith is with... And show myself being a trouble maker.

25:20 Doc: So part of the way I see you in the middle of both you guys in the middle of... And really highlighting is that we're moving from a world where the physical world that we've had for the duration and a digital world, we're digital beings along with physical beings, and as Marcia McLumen said, in 1980 or... So when you saw computers coming along that this is perfect memory that's what computers are about, they're about memory and... And everybody can have some. And the hell does copyright law surviving that at least respecting this kind of thing. And how will it change? In other words, let's say if you're looking for a lot of change or maybe even you have a legislative or regulatory role now, what would you do? Where does that go?

26:23 Damien: I think that one thing that I would say is to be able to say, first, we as a society should look at music and say What is it about music that makes it truly unique that should be something that only one person should have to themselves for their life plus 95 years after they die, and what are the aspects that we want to give to that one person for that monopoly?

And what are the aspects that we want to say, Okay, this person did this thing, but that's just part of the musical periodic table of elements. Everyone has to use this scale in the diatonic scale, therefore, we don't wanna give someone a monopoly in that scale. So to your question, I think that we have shown mathematically that there is... We have essentially brute-forced all of the elements of music that at least melodic elements of music and really forced the question as to whether those melodic elements are something we want to lock up with some one person for 95 years, a life of the author plus 95 years or that's something we want to be available for everyone to be able to build upon as we have been for millennia we've not sued each other as song writers for millennia, we've only sued each other as songwriters for the last 100 years or so, because before that minstrels borrowed a lick here to... And Beethoven, Mozart borrowed licks from their contemporaries.

Music has always been a sharing culture.

And there you would make a reference to somebody else as a wink and a nod.

But here, if you make a reference to somebody else you get dinged for 2.8 million dollars.

So I think that we need to think as a society whether those melodic elements which we, Noah and I, have shown are facts are those elements that are--should be free for people to take and the elements that are happy, writable that are really, it's something we monopolize are the things that make us human, the things that the sigh in my voice, the lilt that I have at the end of this phrase, these are things that machines can't do, so Noah and I leave to the machines, what are the machines and leave to the humans and the copyright, the things that are truly human.

28:38 Doc: I'm wondering if I would like to speaking as an individual, and one without a horse in this race, if it is one, If that metaphor works just push a magic button right now and say, You know what it is the periodic table. Game over. We're gonna start anew here.

The world of all melodies has always been essentially public domain. We propertize those, and under an old print-based regime and that's obsolete now, and we're gonna start over and make your money some other way rather than setting land mines under every possible thing, a future songwriter and musician, can do. And a reason I think a case can be made on that is, there's another argument going on right now and you might want it to go look at it if you're not already on top of it, which is about propertizing data.

There are a lot of people out there that are saying at the moment the big bad companies are taking my data all the time, Facebook's got my data, every publisher's website that I go to is sticking third-party trackers into my browser, and that's my data going out there and that's really my data and I don't want other people to have it.

Or better yet, you know what, you're in a business, with this data. I want a piece of that, and that invites propertizing it and the heavy thinkers I know on this which really aren't that heavy. They tend to be in their 20s or 30s, but there but they're original on this are busy saying, propertizing data is like propertizing air or sunlight or something else like that. It doesn't make any sense at all. It is mathematics, it's basically the case that they're making is that it's just ones and zeroes guys. You can't propertize that. If you put it in a container you can. But the interesting thing about music is that... And I'm seeing the room you're in and it is this wonderful pyramid behind you, this is Damien, of what looks at least it's high enough for vinyl in the bottom shelves and then CDs and then at the top, which I can't see is essentially nothing.

It's just data, right? It could be nothing at least symbolically, right? There you go.

That was more CDs...

30:57 Damien: CDs...

I have over a 1000. Throughout my life I spent a lot of money on plastic disks that don't have value of these days.

31:06 Doc: And so... And so, the container business, we had ways of container-ising music, and you bought the containers. When I was a kid, we bought 78s, then LPs and 45s and then cassettes and CDs, and then spent money on Apple but now we just subscribe to Spotify and we get the entire library of the world, for 10 bucks a month, or something like that.

And as you know, when the list were both on that there are a lot of people who are already in that business, they're terribly upset about that because they're not getting the annuities or whatever it was they used to get, they wanna keep it propertized. And I think it's impossible in a digital world in the long run. And how do we normalize to a digital world, as well as a physical one, where every medium, you can name has been subsumed into it.

32:00 Damien: That's a really good question. So I will say I have a couple of responsesto that. The first response is some have accused us of being copyright nihilists saying, "Let's just get rid of the copyright system for music, altogether and start afresh." And I would argue that at least I... I'm not gonna speak for Noah... At least I am not a copyright nihilist. Because I think that there is value of a combination of the elements that we call music. So one of the elements is Melody as we've been talking about, but there's all sorts of other elements like Melody plus Lyrics plus harmony plus rhythm and all of these things put together and then you have the personality you have the lead singer that can sing like nobody else, and you have that guitar player that can just wail, right?

And so, all of those things in conjunction are what makes hearts sing the things that makes hearts sing is not the sequence of pitches that Noah and I have mathematically brute forced with a computer. So I think that rather than wiping copyright out all together, which is maybe what some might argue. I'd say, "No, we need copyright to be able to protect the thing that makes hearts sing", that is the whole package, everything all together. So, if somebody steals my song, not just the melody of my song, which is just one of those aspects, but the entire song, yeah, I think that he or she should have some recourse, somebody stole my song, the whole thing. Or maybe to the extent that they didn't license it the way that they should have.

Yeah, go after them. So I would say that copyright has its place for protecting the things that are really making hearts sing and the mathematical melodies are not amongst those things. So I would say that's thing, Number One, and Thing number two, what you just said made me think of is, smarter people than I that are really close to the music industry have made the point that we used to sell widgets, we used to sell the CDs before, that 8 track before that LPs and now I guess currently LPs again. But the physical thing was what we made money on, but tomorrow the thing we should make money on, is what makes people gather in one space and be able to get excited about a thing what makes people go to a show, what makes people send a link to a band that they just heard and really makes them really excited. that kind of a communal experience is really what we as a music industry have been selling forever.

But that communal experience was just shoved in a medium that was plastic. But today, maybe that digits, is that being able to take the social aspect of what we do and be able to maybe monetize that social aspect. And now I'm getting into a realm that might raise the antennae of some of your people but I would say that if the music industry is to survive, and if we are to pay songwriters for the value that makes hearts sing, where is that money gonna come from? And I think that's a good question and maybe one answer to that question might be, If I as a song writer can motivate all of my fans to go and go to a show and maybe my fans are also fans of this store or also fans of this shoe company or fans of this whatever.

There's value in them being motivated and I maybe the song writer, it doesn't have to say "Hey fans go buy these shoes" that would be selling out and nobody would wanna do that, but maybe on the back end that song writer can get paid to be able to... And I'm gonna sound crass here, but be able to show that my fans also like these other things and there's value to that, shoe company to know that my fans also like them. So that's again a very, I think controversial thing that music should be pure and not be sullied with Commerce, but maybe that's one way to move from a... We're selling widgets that are plastic, to we're selling experiences that people get excited about.

35:51 Doc: That's a really good final line there. That's a pull-quote, it's interesting on the emotional side. I was thinking that not long before this I got an email from somewhere one of the two many lists I'm on that. I'm in New York City and Pearl Jam is gonna be performing at the Apollo, which is a few blocks south of where I am here, and I immediately wanted to jump on that and thought, it's probably already sold out. Probably is actually... But that's an emotional thing. And that's performance it's not... I had a whole list of things that just came in my head, besides melody, the hook motif, key, chords, harmony, chorus, bridge, structure. And none of that is what music is about. Music is about, it's people, connecting with people, and it's emotional, without emotion there is no music, right?

And it's a wonderful thing on Twitter earlier of a guy who plays the moonlight sonata for an elephant that was used as a packhorse essentially and is 68 years old and is clearly, responding emotionally to the music, it probably makes a difference that this guy has played for him like 100 times and it's about his emotional connection with the guy. Nonetheless, it's around music.

It's making sounds the elephant hears... And responds positively to, so that's... That's one thing and I don't know how one that's so deeply human, that to be the challenges, how do we get that deeply human stuff to operate in the digital world, where it's too easy to conceive of it almost at the atomic level, even with the things I mentioned here, various parts of music, it's still looking at a human being is it's just a skeleton or just a circulatory system or it's reductive right?

And we don't want that, we don't want that through music, we want something that actually works, it connects for us and we're kind of at zero. That's part of one of my theories is that in the fullness of time, we've been in a digital world, basically for one generation, like since 1995, which is before my last adult-child was born, but that was about it. That's nothing in the history of business in the history of lots of things, it's pretty young.

So, I'm very enthused about what you guys are doing, and I hope it succeeds that I... I wanna take an advocate's position, on this. I think it's just really interesting, and I think it'll be fun to lay it on top of the conversations that happen now. Close to 20 years ago, maybe more than 20 years ago, when Creative Commons was founded by Larry Lessig, Aaron Swartz and others who people I know, and that was just... That was not, I don't think he expected it to be as big a thing as it was.

39:01 Damien: Yeah, I've been a fan of Larry Lessig since my first year of law school, when I read code and other laws of the cyber space, that was a formative work. I went to law school to be an entertainment lawyer to represent artists, in music, and that was in 19. I started in 1999, of course, not knowing that the music industry would go through such dramatic changes to the present.

So I did my law review article on Napster, and other peer-to-peer systems and which was just going on at the time. And they were getting sued out of existence.

So anyway, I've been a huge fan of Larry Lessig, and I've been following his career and his loss with the copyright extension act And Sonny Bono, It was a travesty. And so, I thank my lucky stars that Larry Lessig exists and that he's doing the cool things that he's doing now more with politics, but that he did with copyright.

39:50 Doc: There was an upside for him losing Eldred versus Ashcroft. That's right, that was the case that he lost 7-2, that's right, the Supreme Court.

And I think, expected to win. I would have hoped he would have won 'cause it was an obvious case. I mean, I... It's even in the Constitution 14 years.

40:08 Damien: It's perpetuity on the payment though. It's brilliant.

40:11 Doc: On top of that. But they weren't... But thanks to that. He changed in practice what he couldn't change in law, and that was just a huge thing. Do you know Larry?

40:20 Damien: I met him once about four years ago, and I said to him, essentially, what I just told you that it was a travesty what happened to him, and that I was thrilled that he's fighting the good fight. And that I built my legal career on his idea that legal code is at least analogous to computer code, in theory, one should be able to code the laws in the way that you code computers. And so my current day job which we haven't talked about is essentially doing that, being able to extract from the law, both the statutory and regulatory law as well as the case law, extracting the things that matter and maybe make a computational version of the law in the future. But that's all thanks to Larry Lessig.

41:03 Doc: Sometimes, ideas like take years or decades to find their time. Tim Berners-Lee invented the web with http in 1989, it wasn't until Mark Andreesen and friends created the graphical browser five years later and then a year after that, when the NSF net finally shut down the only subnet within the internet that forbid commercial activity that we got the web we have now. And that was to some degree a lucky accident but it was probably something that had to happen eventually, but it had to find its time. And so my project project VRM at the Berkman Center, Berkman Klein Center now, at Harvard, I came up with an idea in 06 which is a monetization idea and the idea was I'm gonna give a penny to every song that I hear if I'm listening, I just give a penny every time. I already own the album or whatever. I think I value that and I'm just gonna do that. And we call that system Emancipay and would apply to published works too where the whole idea was just lowering to zero or as close to zero as possible, the threshold of compensation, the threshold basically making moving the tip jar from gravy to the meat, it could become the meat rather than the gravy or the cake rather than the icing. And at that time we couldn't imagine it. We could imagine that that's an ideal, but now it's possible Apple, bought Shazam. But Shazam has been able to do this. Shazam is the oldest app on phones. It was on Nokias in the '90s where you hold the thing in front of the speaker and it recognizes the song. And in a similar way with podcasts, I would like somebody to be able to say I like that podcast. Check here. And that was called Emancipay. But suddenly, we can imagine that. And part of the context for what you're doing that's so vivid to me, is that we're almost at a point now where the absurdity of the old regime is so obvious and the untenability of its methods are so, so obvious and impossible really. Now we have to start thinking anew about what do we scaffold up here?

So it occurs to me that even if by putting this stuff in the public domain, you've appeared to have taken the monetization matter off the table. It might make it easier to put a new one on there that there may be other ways of monetizing that have to do with... I just like those guys.

So there's a podcast I listen to, and this is interesting. The bill simmons' podcast. I'm a sports freak, and Bill Simmons has some called The Ringer. He left ESPN in some big fall out a few years ago and started The Ringer and it's a bunch of podcasts that just by the way, get sold for 250 million to Spotify which, by the way, is more than you could sell the entire... Am band in New York for right now.

Because the values are are shifting.

Well, he opens and closes his podcast with a few bars of two different Pearl Jam songs, which by the way has re-kindled my interest in Pearl Jam was why I mentioned that earlier. Like, "Oh yeah, then Right, okay, what do they do?

Oh wow, I like that. What I didn't know the name of it, right? And similarly, we happened to hold the rights which took a hard... It was hard for somebody to do for us to a song by The best guitarist who ever lived, it was Danny Gatton, and that's our bumper music and Danny Gatton was look him up, unreal, just unreal. And Danny Gatton by the way, there's a movie, a documentary, on Danny who died quite a few when in early 90s, but called The Humbler, because He humbled everybody else that he could also play.

That isn't finished, and I don't know why it's not finished. It looks like the trailer looks great.

I would like to every single time somebody hears our bumper music and likes it, throw some money at the movie or if they throw it to us, we could re-route it toward paying for that documentary and just having some sort of flow of good will that has small amounts of money that are trivial enough, and some context for that.

And I don't wanna hog the stage here, but it's interesting as it Linux Journal back in the early aughts. I covered as an editor there, like a blank of what was going on with the DMCA and with what was happening with streaming 'cause streaming was very rare. Back then there were a few independent stations, most of the college stations and people are running their own streams and there was a great big fight going on between them and the record industry and Jack Valenti. And all of them because they just didn't want that to happen at all, they didn't want anybody to stream music and it was a settlement there with the copyright royalty board and all that, but nobody could imagine back then a way to monetize it. And I think we can start imagining that now. That's basically my summary that...

46:44 Damien: And there's some people that are chasing the idea of being able to track rights, and I can track through the ether where my song is played when it was played and then be able to essentially monetize through that.

I think it's a really important goal, how I use a... How effective it will be, I think remains to be seen because as you said earlier in the interview that their data is just flowing freely and so being able to track where any one piece of data flows and how it flows, and through whom it flows and who is actually consuming that flow, being able to track all those data points and then push money through that path that has been created, that's a really hard technical problem to solve, and that's not even talking about the rights and licensing problems that would have to be resolved too.

47:32 Doc: Yeah, we can beat all this stuff. I guess the... It's the big thing... You've hit a push-button that I think can change everything, and that's really cool it.

47:46 Damien: Thanks. Yeah, I think that ours is just one piece in a larger copyright morass and copyright puzzle but if we are able to push the needle a little bit with our one piece think, I'd be very grateful.

47:57 Doc: Are there any musicians that you've contacted or have contacted you on this to say they'd like to weight in on this or weigh in behind it or put a shoulder to the wheel, whatever the right metaphor might be.

48:10 Damien: Strangley, so lots of amateur musicians. Yes, I would say no big name musicians. And I would guess that there's a timidity there because they don't want to be... It's hard as a musician to say that copyright laws should be... And waekend is the wrong word, but changed. So to be able to say that melody might be fact that is not copyrightable. As a musician and song writer I might think. Well, that you're taking an arrow out of my quiver. And so even though I know that that same arrow could be used to shoot me, right, so maybe a... Maybe I wanna keep that arrow in my quiver just case, I need to shoot somebody else. So I think for that reason, no musician has reached out to us yet, but I would guess that many of them are maybe cheering on the sidelines being able to... Anything that I can keep from having a target on my back for a song I may have heard 20 years ago, is all the better.

49:02 Doc: Yeah, okay, that's good.

Well, you're at the beginning of something here which is great, that's true.

It feels a lot to me like... Like it did when Larry Lessig said to me, both Katherine and I for context were with Linux Journal, and he was on our advisory board for a while and right after he'd lost the case, he said We're doing this thing called Creative Commons. But it was like, I'm gonna put a lemonade stand out it's not like it was that big a deal. I think he knew it was a big deal, but it was, I'm not sure he knew how big that it was going to be, or how important it was going to be.

49:45 Damien: I take somebody like Larry Lessig to conceive such a thing because he's putting through a contractual lens, something that had not been contractually seen before to be able to think that you have a copyright before Creative Commons, Before Larry Lessig you had copyright therefore you sued people if they violated the copyright and if you wanted to give your work to somebody, you would license that work to them on a one-to-one basis.

But the paradigm shift that he conceived of was... Yeah, I'm not gonna do it on a one-to-one basis, I'm gonna do it on a one-to-the-world basis.

Yeah, through contract which is something that copyright understands, contracts.

So to be able to say one-to-one to one to everyone that was a huge paradigm shift that was not obvious to everybody, but was obvious to Larry Lessig.

50:30 Doc: yeah, yeah.

50:32 Katherine: I think you might be onto something similar. I think this is the topic. Music is so relatable, it's relatable. Medium for anybody to really identify with these copyright issues and larger issues that maybe software engineers working on open source, we talk about these things a lot and live and breathe it, but I think... When you translate legaleze, and the the culture of collaboration into something so relatable to everyone in music, I think you spread the word on a level that was maybe not possible through other media.

51:11 Damien: Yeah, I think you're right. Music is something that you don't have to be an expert in to enjoy. And so I think that one of the reasons this has gained some traction as you say, is because everyone listens to music, or almost everyone listens to music.

And the Venn diagram that I have in the talk is you have music and then you have other people that are lawyers, lawyers are really excited about this, and then you have technologists and technologists are really excited about this, so you're reaching these different spheres of people that are all interested in the topic from a different angle. And so I think that, and being able to maybe look at music in a way that you haven't thought of in the past, is kind of exciting to be able to think. You know, this thing that I thought I knew maybe I don't know it as well as I thought I did.

And to be able to look at the world in a bit of a different sphere and perspective is something that I'm really excited about sharing with people, and I'm really thrilled that you guys have given me a platform and Noah a platform to be able to talk to more people about.

Maybe I'll ask you a question Noah, so if somebody is really into coding, somebody says... Yeah, I really wanna help these guys.

What do you think is the best way that they can do that?

52:18 Noah: The easiest way to get... Start helping out with the technical part of it is to open up a GitHub issue. If people have good ideas, then we obviously review all issues.

If you wanna write some of the code yourself, please open up a pull request, a PR. There's someone that's already done that with some helpful Small changes just for code readability and so if you wanna submit a PR happy to review it, I can't promise the I'm not gonna promise any SLA, and when I'll get to it, but it will be reviewed and if it's good, merged. So I appreciate any of that. There's one thing also that I wanted to add in an earlier discussion you're having about with what now it till at one point that I continue to make people because I think one of the common rebuttals to our project people have said is... So are you saying that people shouldn't pay royalties if they copy their music? And at the risk of beating a dead horse, here, 'cause Damien's made this point. We're not telling people that they shouldn't have the copyright to the music they make. We're just saying that we should be a bit more selective about the types of things that people should be able to own about the music, they create. And I would encourage any artist who's making music today to think about when they're collecting royalties on a song, What are they collecting royalties on and are they collecting royalties on the melody they made... Are they collecting royalties on the number of other elements that they've also probably unwittingly, copyrighted when they submitted their entire work for copyright? I would argue that if you take a step back and think about it, you're probably not making whatever you make for your music you make, just on the melodies alone and if you are, then you're probably asymptotically approaching becoming a melody troll which I'm not sure how much sympathy I'm gonna have for you there. So.

54:24 Doc: I love that "asymptotically approaching becoming a melody troll." That's good.

54:29 Damien: Noah has a way with both code and words that I'm always in awe of... And knowing that you have a very technical audience, please do take him up on his offer. He is not only a good programmer, but a good human being and a good collaborator where he will think more quickly than anyone in the room with him and be able to say Yes, and on top of any collaborator, in this sphere that he works with. So I will say to any of your technically inclined audience members please do reach out to us if you're interested in integrating with us and collaborating on this project. 'cause we would love to have your help.

55:07 Doc: I think it's a good place to conclude.

It's been a really great conversation that I'm sure we'll have some more. This is terrific.

55:21 Katherine: Thank you so much for doing this.

55:21 Damien: Yes indeed.

55:24 Doc: It's been great having you on the show.

55:26 Damien: I thank you very much for having us, we're realy grateful for the opportunity.