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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 new strategy.

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
requirements for express consents, disclosures, and unsubscribe formalities.

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.

Comments (5)add comment

Chris Brand said:

Funny
We all know how much Music Canada cares about "indie labels, start-ups, and bands struggling to build a base and a career" - those are their competition, not their members.
February 21, 2013

marco505 said:

Elvis Costello was Prescient
I was tuning in the shine on the light night dial
Doing anything my CRIA advised
With every one of those late night stations
Playing songs bringing tears to my eyes
I was seriously thinking about hiding the receiver
When the switch broke 'cause it's old
They're saying things that I can hardly believe
They really think we're getting out of control

CRIA is a sound salvation
CRIA is cleaning up the nation
They say you better listen to the voice of reason
But they don't give you any choice 'cause they think that it's treason
So you had better do as you are told
You better listen to the CRIA

I wanna bite the hand that feeds me
I wanna bite that hand so badly
I want to make them wish they'd never seen me

Some of my friends sit around every evening
And they worry about the times ahead
But everybody else is overwhelmed by indifference
And the promise of an early bed
You either shut up or get cut up, they don't wanna hear about it
It's only inches on the reel-to-reel
And the CRIA is in the hands of such a lot of fools
Tryin' to anesthetize the way that you feel

Wonderful CRIA
Marvelous CRIA
Wonderful CRIA
CRIA, CRIA
February 21, 2013

end user said:

LOL
Wow too much hookers and blow are clouding their judgements. You know what would sell music. Easily accessible websites that sells music files not locked to any device and at reasonable prices per track. OR OR actually promoting indie groups instead of trying to lock them into contracts where they don't make any money for several albums. Mind you if you're stupid enough to sign that contract you get what you deserve.

So back to the spam subject where was the last time a label sent out flyers through regular mail promoting indie bands? Even better I have never once since 1996 receive SPAM that was promoting an indie band.

February 21, 2013

Tony Djukic said:

I posted the link to this page...
I posted a link to this page and my support of the legislation on the Music Canada site. Wonder if they'll approve the comment? (Not likely.)

I make a large portion of my living designing things that are either directly involved in, or can be easily associated with, digital, online marketing. And I'm in favor of this law. I'm tired of pleading with clients, asking them to respect the opt-in model and to stop badgering people with inane junk mail and other such social marketing blasts. We get enough scam spam as it is, do we really need to be sending more to people who probably don't want it?

One of the reasons that these laws need to be instituted is the simple fact that these companies have all ignored our opt-out requests for so long.
February 21, 2013

ninjalawyer said:

Disingenuous
I generally like Michael's posts, but the ones on the proposed anti-spam legislation are disingenuous at best. The subtle narrative of these posts always seems to be that big business is looking to screw the little guy by cramming their inboxes full of spam.

I'm not a fan of spam messages, but posts like this one oversimplify and gloss over some real problems with the legislation in favour of Michael's preferred narrative. As currently drafted, this legislation is overly broad in that it will capture a wide array of messages that most people would not consider to be spam, and will impose a significant compliance burden on businesses that will be passed on to consumers, and all for little real benefit. The requirements for tracking opt-in consents IS in fact different than tracking opt-out consents under privacy legislation.

The legislation is also extremely complicated and contains the potential for millions of dollars in penalties, which seems disproportionate to the problem.

Again, I'm not a fan of spam, but I think posts like this one do readers a real disservice.

May 16, 2013

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