Is the Road to Music Success Paved with Spam? Canada's Music Lobby Apparently Thinks So
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Thursday February 21, 2013
The business opposition to Canada's anti-spam
legislation has added an unlikely supporter: the Canadian Recording
Industry Association, now known as Music Canada. The organization has
launched an advocacy campaign
against the law, claiming that it "will particularly hurt indie labels,
start-ups, and bands struggling to build a base and a career." Music Canada is urging people to tweet at Canadian Heritage Minister James Moore to ask him to help bands who it says will suffer from anti-spam legislation.
Yet Music Canada's specific examples mislead its members about the impact of the legislation. The organization offers seven examples posted below in italics (my comments immediately follow):
Bands and labels will struggle to build fan bases.
This is just rhetoric. It isn't a specific
example and doesn't explain how the legislation will do this.
Social media may be hampered, and you may have to unsubscribe fanbases - because you can't confirm whether they continue to want to receive electronic updates. If you have electronic newsletters or mailing lists, you may need to remove recipients, because you no longer have consent to send them, and you're prevented from seeking consent electronically.
Social media based on consent won't be hampered
as the law permits this form of marketing with consent. It is true
that email marketing lists will shift to opt-in, but the existing
lists mentioned by Music Canada are valid for three years after
the law takes effect (meaning they will likely remain valid until
2017). Contrary to what Music Canada says, the law does not
restrict using electronic consent to update those existing lists
during that time period.
An independent label wouldn't be able to "cold call" a venue through email or other electronic communication to recommend they have a concert featuring one of their artists. Bands would face similar limitations to self promotion.
There are several exceptions that allow for
this form of marketing. Venues that place email contact
information on their websites without a notice barring unsolicited
commercial email can be sent relevant electronic communications by
labels or bands. Moreover, third party referrals of bands will
qualify for an exception, labels or bands with a prior business
relationship with a venue can use the business-to-business
exception, and labels or bands with personal relationships can use
those to send commercial emails to venues. This covers the vast
majority of these communications, but if Music Canada is saying
that spamming venues in the rare situations not covered by an
exception is a key marketing strategy, perhaps it is time for a
Your digital distribution of such things as
music, videos, and e-zines delivered by email or instant
messaging may trigger the legislation, especially if they
contain links to additional corporate information like your
website or logo.
So what? As long as you have consent, there is
no concern. In other circumstances (distribution to radio
stations, etc.), the communications are covered by exceptions.
Social media campaigns may be crippled. Express consent will be required before forwarding communications to neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.
Untrue. Social media campaigns based on consent are not blocked by the law. Moreover, there is an exception for personal relationships that would likely exempt the need for express consent for neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.
You may need to invest in expensive
processes to comply with the new across the board
Privacy law already requires organizations that
collect, use, and disclose personal information to maintain
processes that respect opt-out requests. Surely Music Canada is
not suggesting that its members breach current privacy laws by
failing to invest in the systems needed to properly track the
personal information they collect along with opt-out requests.
You may also need to make substantial
investments in new tracking and compliance systems or face the
threat of class action law suits from the expected CASL
litigation trolls under the new private right of action.
As noted above, compliance with current privacy law requires systems to respect opt-out requests. With respect to the threat of lawsuits, there is a certain irony that the industry that introduced lawsuits against individuals for file sharing (CRIA members first commenced such actions in 2004) and brought us the Sony Rootkit debacle is now concerned with lawsuits against its own members for failing to abide by an anti-spam and spyware law.
Thursday February 21, 2013