What's At Stake
In response to Kevin Drum's challenge, I think the first thing to say is that it's worth distinguishing between the music industry and the film industry. A world where you can't make a profit selling albums would radically alter the music business but not, I think, kill it off. Recording music is relatively cheap, being a rock star is cool, the vast majority of artists make very little money off CD sales, and musicians have alternative sources of revenue. Movies aren't like that. They're inherently expensive to make, many of the contributors have totally ungalamorous jobs, and broad categories of movies don't have real merchandising opportunities. Without copyright, you'd have less new music recorded, but by no means none. What's more, music would be free -- which is a real advantage. A film industry without copyright, by contrast, is hard to imagine. So I think there's a solid case for treating these things differently. That said, I actually think all this is less relevant than most people think.
Even though it was the ostensible subject of the litigation resolved today, P2P software is largely a red herring. The software can't be unreleased. Crucial elements of the code are open source, so new variants will pop up. You can always distribute the stuff off a server in Sweden or the Cayman Islands or what have you. The genie can't be put back in the box.
Or, rather, it can. By prosecuting individual infringers and slapping them with stiff penalties. This has gained the RIAA some bad press, but increasingly they're doing it anyway and hiring PR people to improve their image. The notion that this is inherently unworkable is silly -- there's a mix of number of prosecutions and severity of penalties that will mostly stamp this stuff out. If the penalties currently provided by law aren't stiff enough (and they're very stiff) congress will increase the penalties. On the one side you've got big record companies and bigger movie studios. On the other side you've got the legendary teenager lobby. It's no contest.
What is at stake is hardware. I lost the contents of my hard drive recently. Most of my data was backed up. But not my music. Why? Because it's on my iPod. One problem -- you can't transfer music from an iPod to a computer. Why? Because Apple was afraid of being sued. Why? Because if you could do that with an iPod it would be a useful way of illegally transferring copyrighted data. But it's also a useful way of legally transferring copyrighted data. Fortunately, there's a workaround program available that lets you do this and hasn't yet been hounded of business.
I have a DVR machine at home. I would like to hook it up to an external hard drive so I can store more stuff. Storing programs for later viewing is the quintessential example of a fair use. But I can't hook it up to an external hard drive. Why? Because the manufacturer is afraid of being sued. Why? Because if you could transfer from a DVR to a hard drive, you could take DVR programming and put it on the internet.
One can go on and on like this. P2P software really does have non-infringing uses. At the same time, there's relatively little you could do legally with P2P that couldn't be done some other way. BitTorrent is a very powerful method of copyright infringement. But it also has some much clearer legal applications that are hard to replicate. With hardware, the case gets even more clear-cut. There's simply no substitute for the convenience of digital data that you can rapidly transfer from one device to another without restrictions, passwords, proprietary whatevers, and arbitary built-in incapacities. Making content and devices as useful as possible will, yes, allow for some infringement. At the same time, precluding all infringement will make content and devices much less useful than they could be.
It's important to be clear that this is what the content industry wants. And I don't blame them. They have a fiduciary responsibility to their shareholders to try, by any means necessary, to bring copyright infringement to as close to zero as possible. That's their job. It's not their job to take a reasonable stance on this. It's not their job to strike a fair balance. If I were on the board of a record company and heard an executive saying something reasonable about copyright, I would fire him. Executives and the lawyers they employ are supposed to be unreasonable. They're supposed to maximize their profits. Copyright law, however, is not.
Similarly, to whatever extent possible, content owners and their lawyers will seek to exploit and abuse whatever legal mechanisms are open to them in order to create a chilling effect. Hardware innovation has already been non-trivially reduced by fears of lawsuits. A vague standard that lets copyright holders go on fishing expeditions subpoening internal documents in a hunt for incriminating intent will prevent people from investing in the creation of new devices. I'm not sure whether or not that's what the Grokster ruling allows, but it might be.
Which is to say that technology's salvation lies in clear rules that are easy to understand, easy to apply, and then lead to summary judgments that don't get appealed when companies make frivolous threats. My preferred rule would be this: "Infringement is infringement and it's illegal; making stuff isn't infringement." If we need to fall back to the rule "infringement is infringement and it's illegal; also, marketing stuff as useful for infringement is infringement; making stuff isn't infringement" that would be okay. But a rule needs to be clear. It needs to have safe harbors that it's easy for a company to demonstrate it's landed there. If you need to produce every document ever made to prove that nobody working for your company ever at any point contemplated the fact that it's illegal capacities might boost sales, then nobody's going to be able to make anything that can be used for infringing purposes. That would be a real loss.
Prosecute infringers. There's a separate conversation to be had about how big a deal infringement is, which is linked to how harsh the penalties for infringers should be. I would argue that music infringement isn't a huge problem in the aggregate, while movie infringement might be (right now bandwidth isn't big enough to really know, but that's certainly my guess). Ultimately, though, even if we make these penalties too tough, I don't think that would be too terrible. But we shouldn't massively chill technological innovation in a quixotic effort to eliminate all copyright infringement.
Comments (76)
Seems to me that matt has changed his tune a bit in the face of todays ruling, but I agree with him about the need for clear rules.
The focus has been up to now on the ramifications of new technology. The new technology somehow was supposed to have changed copyright rules. The supreme court has unanimously rejected that falacious argument.
What I would like to see as well as clear rules for technology companies is a restatment of creators intellectual property rights. From patents to copyrights. What can be patented, what rights creators have over the distribution of their works.
Everyone has been so giddy over new technology that I think clear re-statment of intellectual property rights is necessary just to get everybody back to reality.
cw
P.S. I can never get the goddamned paragraphs to work right on this stupid thing.
June 27, 2005 10:36 PM | Reply | Permalink
I'm sympathetic to Matt's point of view, but I'm pretty doubtful that it'll be possible to impose simple categories on the varied ways people create, distribute and consume content. Without that, it's going to be hard to create the safe harbors Matt wants for the benefit of hardware makers.
Suppose we decide that we'll make a legal differentiation between music and movies, with different levels of infringement defined for each. What, then about concert DVD's? Are television shows going to be defined as movies? Or only dramas, but not reality shows? What about sitcoms? Maybe we should only give the "movie" designation to stuff that gets shown in a theater. In that case, does it lose the designation once the movie's been shown on TV? If it doesn't, what's to prevent television producers from screening their shows once at a pretend "theater" to get the "movie" designation? And how is the hardware supposed to be able to tell this has happened?
You could simply continue as we have up to now, with all copyrighted works given the same designation. However I don't see where this gives the hardware makers any sort of safe harbor.
Digital Rights Management built into the hardware can solve this, but the problem there is that nothing stands in the way of the most expansive possible regime of copyright protection, given that the DRM will be established by the content creators. Nothing, that is, except government regulatory bodies, which in this political climate is effectively the same as nothing.
So at this point it looks a bit all-or-nothing to me. Either we have a digital arnarchy, or we have a digital 1984. Neither is very tempting.
June 27, 2005 11:12 PM | Reply | Permalink
The answer to all of the internet abuses, be it email spam or illegal file sharing or identity theft, could be the digital fingerprint. Once it is possible to identify any user precisely, we will start seeing the return of accountability, which is absent from the internet now. Some are even discussing building a new internet based on user identification and accountability. If we don't find a solution to the abuses built into the present system, the whole concept of exchange of ideas may become a thing of the past, or, at the least, the exchange of valuable ideas may disappear.
June 27, 2005 11:35 PM | Reply | Permalink
I agree with this, but I don't think that making infringement penalties more severe is the answer. On the contrary, I think we should make them much less severe, but much more likely to be enforced. Copyright infringement should not be a criminal matter, it should be considered like speeding or jaywalking. But how do you make it so that you can catch infringers in the large quantities required? Simple. You authorise private individuals to try to entrap people into infringing copyrights, and then you pay them a bounty for each one that they catch. So if being caught infringing copyrights results in (say) a $40 dollar fine, the bounty hunter would get maybe $5 or $10. Bounty hunting could be nice little part-time job for tech-savvy people who need the income.
So with one stroke, you solve both IP *and* outsourcing problems in one go. What's not to like? (kidding)
June 28, 2005 12:15 AM | Reply | Permalink
Musicians have "alternative sources of revenue" only once they have sold enough CDs to keep making music while building an audience that will buy millions of T-shirts, stadium tickets, etc. Consider an artist who is just starting out. If a musician has to start off giving away his work for free, it will be immensely difficult to attain that level of support. Very few bands can actually make a living just from the kind of small-scale gigs that new acts get. So most musicians will never be able to give up their day-jobs, and less great music will get made.
Why do you think music should be free? Sure, it would be an "advantage" to the consumer, but it would be an advantage if books and cars and houses were free too. Why should you profit from another's labours without making a contribution? If you did not get paid to write magazine articles, would you continue writing full-time for free, and somehow live off the land? Free music means unfree musicians.
June 28, 2005 3:23 AM | Reply | Permalink
Genies don't live in boxes.
June 28, 2005 4:38 AM | Reply | Permalink
<i><b>They're inherently expensive</i></b>
Prove that statement please.
I see lots of overly paid stars, producers, directors. I hear a lot about funny bookkeeping keeping profits down. I hear a lot about overly expensive distribution systems. I hear a lot about incredibly expensive marketing campaigns. I see lots of pretty much worthless CGI.
I don't see a lot of interesting good scripts, or a vast diversity of choices, and evidently, the public agrees and box office receipts are down.
Perhaps P2P will kill all of this off and we can return to an era of movies made for only $20 million dollars, interesting scripts, and actors that can act.
Supported by the usual techniques and perhaps downloadable with some technology changes, and where enough infringers are caught through reasonable techniques and fined appropriately until they breach some boundary when they might be criminally charged.
There is nothing in the constitution that says that any specific job, or industry is to be protected against change.
Mr. Havaad Philosopher, your premise is b O g u s!
June 28, 2005 5:13 AM | Reply | Permalink
And lot's of us have unglamarous low paid jobs. So nu?
June 28, 2005 5:15 AM | Reply | Permalink
There's far too much romanticization of "creators" in all these discussions. Most rock bands usually do their best work when they still have day jobs - it's when they're freed from the day-to-day grind that they tend to become bloated and self-indulgent. Would the world be any worse off if REM had stopped recording in 1990? Not really. What would be so horrible about a world where a musician could only make a decent living by being a performer who actually has to put on a good show? Are we suffering from a deficit of content at the moment? On the contrary - there's a glut of everything - too much music, too much television, too many movies, too many books. Most of it's mediocre and few people have time to really find and enjoy the good stuff. Weeding out the people who are creating just to make money might improve things a little.
June 28, 2005 6:24 AM | Reply | Permalink
<p>"The software can't be unreleased. Crucial elements of the code are open source, so new variants will pop up. You can always distribute the stuff off a server in Sweden or the Cayman Islands or what have you."</p><p>Yup: The Economist reported that one of the post-Napster variants was run out of the Jenin refugee camp in Palestine.</p><p> </p><p>BTW: the posting arrangements on TPM still suck.<br /> </p>
June 28, 2005 6:37 AM | Reply | Permalink
Aaargh!
June 28, 2005 6:38 AM | Reply | Permalink
"Weeding out the people who are creating just to make money might improve things a little."
Playing devil's advocate here for a second -- I'm not so sure about this. Is your definition of "making money" getting rich, or being able to make a living from one's own music?
While I do have a preference for smaller bands keeping things smaller in scale*, if there wasn't the opportunity to get to a place where one's music would support oneself, you might see a lot of bands deciding not to bother. I think that a good number of bands working hard, playing shows after coming home from work, etc. are doing so at least in part because there's a possiblity of being able to do so full-time.
On the other hand, I do recognize that there's a large difference between bands going out on the road for the sake of touring and bands in (especially) New York and LA trying to play the "right" shows to impress a major label and get signed. Let's put it this way: I have no qualms about hard work paying off.
-Toby
*-example to the contrary: Death Cab for Cutie's "Transatlanticism", recorded in multiple studios, and not necessarily the better for it, in my opinion.June 28, 2005 7:05 AM | Reply | Permalink
I disagree -- most bands build a fanbase exactly by giving away their music for free early in their music careers. By posting music on the internet for free, musicians are able to entice listeners to give the music a try they might not have if the music came with $19 price tag.
June 28, 2005 7:14 AM | Reply | Permalink
"I think the first thing to say is that it's worth distinguishing between the music industry and the film industry. A world where you can't make a profit selling albums would radically alter the music business but not, I think, kill it off. Recording music is relatively cheap, being a rock star is cool, the vast majority of artists make very little money off CD sales, and musicians have alternative sources of revenue. Movies aren't like that. ... A film industry without copyright, by contrast, is hard to imagine."
Sloppy thinking, on this count.
In a world with unlimited piracy, there would still be movies, just like there would still be music. But it would be of a very different character, just as the character of recorded music has shifted in the past decade of widespread music piracy.
What Matthew is really saying is that he likes the Decemberists better than he likes U2, and that because he (mistakenly) thinks rampant piracy doesn't affect the production of new music he likes, it's OK to kill of the music industry.
Why is the new U2 overproduction any less worthy of protection than Spiderman 7?
-----
And good lord, "music would be free -- which is a real advantage."? C'mon...
You basically seem to be holding tightly onto the idea that the rules you think make sense for every single industry, content based or not, somehow do not apply to the music industry.
It's a real advantage if music is free, but it's not a real advantage if movies are free?
What about writing? Is it a real advantage if no one has to pay for writing?
If someone set up a website so the subscribers-only articles you write for the Prospect were shared for free, and enough people took advantage so that it impacted Prospect subscriptions, and then the Prospect decided it could no longer pay you, would that be a real advantage?
June 28, 2005 7:16 AM | Reply | Permalink
the big bad media companies stifling innovation by chilling the creation of hardware and software that could be used for legitimate fair use purpose. But come on Matt, in post after post, you have expressed your disdain for current copyright law and apparently believe that despite artists' claim to the contrary, you have the right to download and use whatever music you want to from the internet without compensating anybody. It is because of attitudes of people like you, who think you know what is "best" for the artist, when in fact you are just making excuses for being too cheap to pay for somebody elses work product, that the market is chilled.
June 28, 2005 7:17 AM | Reply | Permalink
"But we shouldn't massively chill technological innovation in a quixotic effort to eliminate all copyright infringement."
No doubt.
One test case to consider: should Bram Cohen be prosecuted?
I'd argue no. Why? Because he's not profiting from BitTorrent. The presence or absence of profit should be the distinction. But, if he were selling the software instead of giving it away, I'd say he should be thrown in jail.
Leave the profit in the content industries. Remove the profit from the piracy industries. Everything else will then take care of itself.
June 28, 2005 7:34 AM | Reply | Permalink
There's nothing like file-sharing to bring the utopian socialists out of the neo-liberal woodwork, is there?
June 28, 2005 7:47 AM | Reply | Permalink
Some of you "information wants to be free" folks need to come back to planet earth. I'm a freelance writer, and I'm quite anal about reprints: If I work my tail off for two weeks on a piece, I don't want someone reprinting it free of charge. It runs where it runs originally (for a fee), then you pay me if you want to print it again. A reasonable fee. And if you don't want to pay the fee, you can summarize it yourself, or quote a few snippets. That system seems to work well all 'round.
That's how I pay the rent and feed my child. Why, on god's green earth, should it be any different for musicians? They create a song (with the help of a record company usually) and if you want to hear it you pay for it. Not that complicated.
Yes, there would be a "significant advantage" if music were free. It would also be nice if food were free.
I think this issue has been taken over by university professors (a la Lessig), who live by an entirely different economic model. They get a substantial salary and so don't care whether or not their books make any money . (Same with talking-head types like Anne Coulter: the books are just there to help generate speaking fees.) For those of us whose creative work IS our source of income, the protection of copywright is essential.
So: Yea, Metallica, boo Matt.
June 28, 2005 8:02 AM | Reply | Permalink
They have a fiduciary responsibility to their shareholders to try, by any means necessary, to bring copyright infringement to as close to zero as possible. That's their job. It's not their job to take a reasonable stance on this. It's not their job to strike a fair balance. If I were on the board of a record company and heard an executive saying something reasonable about copyright, I would fire him. Executives and the lawyers they employ are supposed to be unreasonable. They're supposed to maximize their profits.
This is largely a fair statement. However, to be a bit nit-picky, I should say that even assuming that stifling technical progress and innovation doesn't bite them in the ass (that's a big unwarranted assumption), there's bound to be a point where it costs more to catch the next guy than you save.
Just basing my guess on the backlash against the RIAA, and record companies, they may have passed that point already.
Now, the big monkey in the room, the assumption that clamping down won't hurt them in the long run... that one is unknowable, right? But we can say that preventing new technologies from being used, proposed, whatever, is likely some bad policy.
June 28, 2005 8:12 AM | Reply | Permalink
At the moment, the music soundtrack for a movie usually sells for more at Virgin or Amazon, than does a DVD of the movie, itself. That should tell you something.
June 28, 2005 8:31 AM | Reply | Permalink
Name one currently famous band who did that.
June 28, 2005 8:39 AM | Reply | Permalink
"At the moment, the music soundtrack for a movie usually sells for more at Virgin or Amazon, than does a DVD of the movie, itself. That should tell you something."
I'm not sure what you think that indicates, but I will point out that the relatively high price of soundtrack albums pre-dates Napster.
June 28, 2005 8:47 AM | Reply | Permalink
Just for the sake of argument:
In an ideal world, musicians and writers would be able to do their thing for its own sake and distribute it freely without having to worry about making money. Unfortunately, capitalism gets in the way of this. I'd like to live in a society that just offered all artists an adequate stipend and, in exchange for that, required them to give away their content. The devil's in the details of course, but there's plenty of devil in the system we have now, which is set up for the benefit of executives at the expense of both creators and audience.
June 28, 2005 8:48 AM | Reply | Permalink
Interesting discussion. I just completely reject the notion that if file sharer's go unchecked it will havecause the recording industry to go out of business. Even in this age of P2P piracy the music CD's often sell millions of copies at $15-$20 a pop. Do the math. Does it sound like the recording industry is starving?
Back in the day when I was a teenager it cost between $6-$8 to buy an album of a cassette tape. Then the digital age began and music started being released on CD. I am very sure that it costs far less money to burn CD's then it cost to record tapes or press albums back in the day. But the prices for the CD's have skyrocketed. The increased profits haven't gone to the artists either. Is the recording industry not made their money off of Hendrix's Are You Experienced or The Who's Quadrophenia? I am not saying they are not entitled to the money, but their claim of irreperable economic damage due to file sharers is laughable.
In fact I think they have factored the losses due to copyright infringement into the inflated retail costs of the CD's. So if copyright infringement is cut to zero are the members of the RIAA going to lower the retail cost? Or, as I expect, will a music CD cost $40 within the next 10 years? Sympathy for the recording industry? No, I have no sympathy for the RIAA one bit!!
June 28, 2005 8:56 AM | Reply | Permalink
US copyright laws don't exist so that musicians can "make a living from [their] own music." These laws exist in order to insure that new material doesn't stop being produced. People will continue to make new music even if there's no guarantee that they can make a living at it. It's not up to the government to insure that musicians can make a living in their chosen profession. It's up to the government to create an environment where music can flourish; and music can and will and does flourish in an environment of free file-sharing.
Any of you musicians out there gonna stop playing in a band because you can't make a living? Should the US government care if YOU stop? Hey, maybe my band will get more gigs if you get out of the way. There's still plenty of music to see/hear out there. See what I mean?
June 28, 2005 8:58 AM | Reply | Permalink
Off the top of my head, Bright Eyes.
June 28, 2005 9:12 AM | Reply | Permalink
bright eyes sucks so, so bad.
June 28, 2005 9:18 AM | Reply | Permalink
What, you've never played the "My Dinner with Andre" video game?
Seriously though, this will not kill moviemaking. It will have to adapt is all. There will be a demand for movie-like content, somebody will have to fill it.
June 28, 2005 9:22 AM | Reply | Permalink
The problem is, with that arrangement, you're not talking about REM ceasing recording in 1990. You're talking about them pretty much stopping almost before they started. (According to Mike Mills, they quit their day jobs after the EP "Chronic Town" came out.)
What you seem to be objecting to is the point at which a band (or actor, or, to a lesser extent, writer or artist) explodes and makes megamillions. I'm not sure it's always as bad for the artist in question as you think (though it certainly can be). But even if it were, how can you penalize the multitude of poor artists from making whatever small living they get off copyright, just because superstars make too much money off it?
In fact, it seems to me that your plan would relegate the creation of the arts almost entirely to kids with trust funds. Those kids have enough of a head start already, I think.
June 28, 2005 9:25 AM | Reply | Permalink
"Do the math. Does it sound like the recording industry is starving?"
I've done the math, and the recording industry has been hammered by piracy. Sales are lower than the pre-Napster peak. Numbers of albums released are lower. A&R budgets to develop new talent are a small fraction of what they were.
You seem gleeful at the problems of the recording industry, so you don't seem to care about the actual math.
"Sympathy for the recording industry? No, I have no sympathy for the RIAA one bit!!"
It's obviously hard to have much sympathy for the music industry. Of all the content industries, the suits in the music industry have long been generally recognized as the sleaziest. But sympathy is not the point.
Let's take a look at an industry that I don't have much sympathy for - the pharmaceutical industry.
I think the federal government should take a number of steps to limit the IP rights of the pharmaceutical companies. I think it should be easier to market generic drugs once the original patents expire. I think the federal government should bargain on drug prices for Medicare. I think US consumers shouldn't be paying higher prices than consumers elsewhere in the developed world.
And moreover, I think the pharmaceutical industry has been guilty of repeated sleaziness in expanding their profits against the public interest.
But despite all this, I support vigorously defending the pharmaceutical companies legitimate IP rights. Why? Because defending legitimate IP rights creates new products in the future.
You may not like the folks in the music industry the same way I don't like the folks in the pharmaceutical industry, but the principles involved are no different.
June 28, 2005 9:27 AM | Reply | Permalink
"In fact, it seems to me that your plan would relegate the creation of the arts almost entirely to kids with trust funds."
And finally, someone hits on the actual heart of the matter.
June 28, 2005 9:32 AM | Reply | Permalink
I don't think that your idea: "US copyright laws don't exist so that musicians can make a living?" has much value.
US copyright laws are a compromise between full property rights and the needs of a society to be able exchange information freely.
If there were no copyright laws creators would have full property rights over their products, the way a farmer or a manufacture does. Without copyright there would be no fair use, no works in the public domain. Record companies would own the right to records in perpetuality.
In exchange the gov. writes laws against copyright infringement. These laws make it easy to protect your copy rights. Otherwise you would have to sue infringers in civil court at your expense, the way you do when someone violates any other kind of contract.
The copyright clause in the constitution is not about guarenteeing musicians a living, but it is about property rights, and one of the things people do with property is use it to make a living. The ability to make a living off your products is inherent in the copyright clause, though so obvious no one needs to mention it.
cw
PS rankings, registration, weird typography: they all suck.
June 28, 2005 9:38 AM | Reply | Permalink
No petey, I am not "gleeful" about any alleged problems the RIAA members are having. But to place the blame for all the failings of the recording industry on file sharers is misplaced. If you actually look at the industry and see how wasteful they are in terms of their money, their decadence would rival WorldCom and Tyco. I guess that is the file sharer's fault too?
You may not like the folks in the music industry the same way I don't like the folks in the pharmaceutical industry, but the principles involved are no different.
I clearly said in my post that I felt the music industry is entitled to their money. But the industry is rigged in terms of pricing. All the CD's retail prices are controlled RIAA member companies. In a normal free market environment like companies shouldn't be working in collusion to set the marketplace price for each other either.
June 28, 2005 9:48 AM | Reply | Permalink
"I clearly said in my post that I felt the music industry is entitled to their money. But the industry is rigged in terms of pricing. All the CD's retail prices are controlled RIAA member companies."
If you think prices are too high for a product, you get to not buy that product, not steal it.
If you think there are anti-trust violations going on, there are laws to remedy that.
None of it is an excuse for not enforcing their legitimate IP rights.
"But to place the blame for all the failings of the recording industry on file sharers is misplaced. If you actually look at the industry and see how wasteful they are in terms of their money, their decadence would rival WorldCom and Tyco."
The music industry was considerably more decadent pre-Napster, but they didn't have the problems they do today.
I understand that you are on a different side of this issue than I am, but if you honestly look at the evidence, it's impossible to not conclude that the music industry has been hammered by piracy in the post-Napster era.
June 28, 2005 9:59 AM | Reply | Permalink
In a truly free market there would be companies that would try to grab a market share at lower prices and not worry about hurting their competitiors profits, what the industry is doing now is anti-competitive. And btw I don't buy CD's anymore, I just listen to the radio now...you are tight I choose not to buy it.
June 28, 2005 10:07 AM | Reply | Permalink
I meant to say "You are right" petey...sorry for the typo.
June 28, 2005 10:10 AM | Reply | Permalink
You wrote ... "It's up to the government to create an environment where music can flourish; and music can and will and does flourish in an environment of free file-sharing."
That's not what the Constitution says. Read Article I, Section 8. It acknowledges that those who create intellectual should have exclusive control over how that property is used (for income, fame, or whatever) for a set amount of time.
June 28, 2005 10:11 AM | Reply | Permalink
If someone reprinted your article you would threaten to sue them and make them stop, that's fine.
But, if someone liked your article and photocopied it and passed it around to friends, would you sue Xerox?
June 28, 2005 10:15 AM | Reply | Permalink
Never heard of them. So they're not that famous. ;-)
Your statement that "most bands" do this is ludicrous.
June 28, 2005 10:16 AM | Reply | Permalink
"In a truly free market there would be companies that would try to grab a market share at lower prices and not worry about hurting their competitiors profits, what the industry is doing now is anti-competitive."
I'm in favor of stronger and better enforced anti-trust laws than we currently have. If the music industry is really acting in anti-competitive ways, (I don't currently know enough about the specifics to make a judgment), I'd be happy to sign your petition to go after them legally.
My only point is that none of that is an excuse for not defending their legitimate IP rights.
June 28, 2005 10:16 AM | Reply | Permalink
"But, if someone liked your article and photocopied it and passed it around to friends, would you sue Xerox?"
The problem is anonymous mass distribution, not personal small-scale distribution.
June 28, 2005 10:23 AM | Reply | Permalink
My only point is that none of that is an excuse for not defending their legitimate IP rights.
I agree petey that their IP rights should be protected. But the consumer's rights should be protected too. I am eagerly awaiting the next "technological breakthrough" so I can buy the same music I have already purchased in vinyl/cassette/cd forms can be purchased again in a different format. I really like having to buy the same thing 4 times.
June 28, 2005 10:23 AM | Reply | Permalink
I would agree with the other posters that the evidence for this is quite slim. Bands build loyalties through touring. As soon as they can afford to record a massed-produced CD (or record) they sell it--they don't give it away. Even third-string opening bands at the Black Cat, in DC, for example, sell their wares in the back of the hall--they don't give their CD's away.
Anyway, nothing in current copyright law says you can't give away stuff if you feel like it. So you start a band and you think the way to fame and glory is to put your songs online, free of charge? Hey, man, go for it.
On the other hand, if you want to charge, you're free to do that too. The point is that under current law the BAND, not Matt Y, or you, or Larry Lessig, make that call. That's the way it should be, no?
June 28, 2005 10:32 AM | Reply | Permalink
Most bands are not famous bands. Just like most writers are not famous writers and most actors are not famous actors. Your reading my statement "most bands..." as "most famous bands..." is ludicrous.
By the way, Bright Eyes held both the number one and two spots on the Billboard Top 100 Singles last November.
June 28, 2005 10:47 AM | Reply | Permalink
Not quite. The Constitution empowers Congress to create such rights if it feels that to do so would "promote progress of science and the useful arts." If Congress determined that the rights it has been granting do not promote Congress, it is free to alter or even to discontinue them.
Article I enumerates the powers of Congress. It creates no obligations to individual citizens or even classes of citizens.
June 28, 2005 10:49 AM | Reply | Permalink
Seems to me that most of the comments take too much for granted. The Constitution empowered Congress to grant exclusive powers for a limited time in order to serve a purpose--the promotion of progress.
Every existing business model throughout the content industries (freelance writing, music, movies, etc.) has emerged because it is compatible with the rights that Congress chose to grant.
In a truly free market, your decision to put your creation (or invention) into public view would set it free for all to use. Problem: that free market approach would motivate insufficient creation. Solution: develop a regulatory regime that restrains the free market to promote an alternative social good, namely creativity.
We should evaluate the copyright system precisely the same way that we do all other regulatory systems. How effective is it at achieving the social good that justifies this impediment in the free market? How much does it cost to manage and to enforce? If the benefits outweigh the costs, the regulations justify themselves. If not, we need to deregulate or re-regulate.
As with all warranted deregulatory movements, those with entrenched expectations will be disappointed as society benefits. Previously lucrative business models will die (anyone recall what the 1986 tax reform act did to the tax shelter business?). New onese will arise. If we're getting more creativity at lower social costs, the new regulatory regime beat the old one.
No one is entitled to keep a business model intact jsut because it's been viable for a long time.
June 28, 2005 10:56 AM | Reply | Permalink
You guys talk as if the US is the center of the universe, and American domestic policies would have any effect whatsoever on p2p.
Myopic doesn't begin to describe this.
June 28, 2005 11:23 AM | Reply | Permalink
I see this argument from a lot of people who have no direct knowledge of what the life of an independent musician is like.
Giving away your music in substantial quantities is and always has been a virtual requirement when starting out -- to radio stations, labels, club owners, journalists, record store owners, contests, people who give you floorspace to sleep -- the list is unending, and your music is your only currency. P2P is, to most struggling musicians, something even better: free advertising -- a means to an end that is almost always out of reach. I have yet to meet a fellow musician who has a problem with file sharing. We will get exploited at every level, but we persist because we love creating music.
Now, my day job happens to be that of independent record store owner and I can say in no uncertain terms that file sharing/P2P has a direct and beneficial effect on sales -- mainly for independent artists, but also for major releases.
The majors got used to a sales model that allowed them to put out a lot of crap for outrageous prices -- for decades. The fact that sales have gone up since they lowered prices this past year is just more proof.
June 28, 2005 11:35 AM | Reply | Permalink
You're a jail-happy bunch, aren't you? Throw this guy in jail! Throw this other guy in jail! Huge fines for everyone! Let's have a police state and toss away our electronic freedoms so that REM can keep making CDs!
I am always shocked by how many on the left think that intellectual "property" (a coinage as dishonest as the "death tax") is a law of nature, instead of a now largely obsolete attempt to derive rents from artificial scarcity of goods that would otherwise be free. The idea that the end of copyright would be the end of creativity is ridiculous.
But never mind; keep signing away freedoms & free goods for those of us who disagree, because god forbid there should be any threat to the movie industry.
June 28, 2005 11:49 AM | Reply | Permalink
I agree that bands build loyalties through touring; they just also, especially in the early stages, give some of their music away online. I clicked on a few random bands through the Black Cat site, every single one had at least one mp3 to download on their website.
I'm not trying to argue copyright policy -- I haven't really made up my mind on the subject. I'm just trying to argue with thenotion -- foolish, I think -- that any band would be crazy to give any of its music away. The internet and downloading have helped music -- and more than a few bands reach some degree of success.
June 28, 2005 11:52 AM | Reply | Permalink
Wilco
June 28, 2005 11:56 AM | Reply | Permalink
Oh boy. Well, as a musician, I might as well give my take.
P2P does not hurt struggling, beginning bands. People have to be aware of your music before they go searching for it on a P2P program. The key for a just starting out band is to either a.) get a loyal following by word of mouth or b.) get your single on the radio. Many times a. leads into b., but it can happen vice versa if a local radio station takes a chance on you (take Godsmack for instance.) Essentially though, its that radio play, and not just midnight in the am radio play we're talking about, but primetime stuff, that makes or breaks the band. If enough people like what they hear, they are going to go looking for it. P2P can only help that. (Hell, my band even posted the full-length MP3s on our website of our entire EP after we sold out of them so that we could try to keep everyone who wanted a copy satisfied.)
The question at that point is whether or not the music is good enough at that point in the public's eyes. If it is, the band ought to be able to make a living at what they do. Its my personal opinion that real fans will buy your CD because there is more to the process of owning a CD and being part of that fandom, than just listening to the song. So if you have enough real fans, who buy your CDs and pay to see you live, you should be able to make it.
I'm just not sure P2P really steps on those toes or not. In the cases such as Metallica, I'm 100% certain it did not.
June 28, 2005 12:06 PM | Reply | Permalink
<span class="Apple-style-span"><BLOCKQUOTE><EM>I have a DVR machine at home. I would like to hook it up to an external hard drive so I can store more stuff. Storing programs for later viewing is the quintessential example of a fair use. But I can't hook it up to an external hard drive. Why? Because the manufacturer is afraid of being sued. Why? Because if you could transfer from a DVR to a hard drive, you could take DVR programming and put it on the internet.</EM></BLOCKQUOTE></span><span class="Apple-style-span">I have a DVR with the ability to record the video onto a DVD in MPEG-2 Video-DVD format. While not a hard drive, it is still permanent storage outside the core unit. Of course, I live in Japan, where I bought this. But the same company makes a machine in the U.S., which my father bought, with the exact same features. To the best of my knowledge, Toshiba has yet to be sued for this.</span><span class="Apple-style-span">
</span><span class="Apple-style-span">It even lets me delete commercials by designating them as chapters, then deleting the chapters. I'm on season 7 of the X-Files now. Don't think I'll be sued, though.</span><span class="Apple-style-span">
</span>
June 28, 2005 12:08 PM | Reply | Permalink
Well, that didn't work, formatting-wise. HTML is supposed to work, but not only didn't my HTML work, a lot of other gunk got loaded into the message...
June 28, 2005 12:10 PM | Reply | Permalink
The music industry itself is to blame almost entirely for these problems. Why? The prices they set cause a lot of illegal behavior. For example, illegal cigarette sales are largely linked to cigarette prices. The higher the prices, the more people will buy the illegal but cheaper brands. This is why there is an optimal level of taxation on cigarettes. If it gets too high, revenues get offset by people circumventing the system.
Consider how this applies to music:
First, downloading music as MP3 are lower quality than CDs and you absorb much of the distribution and production costs. Still, the price of a dollar per song is largely the same as if you bought the CD. This reflects monopolistic, not free market pricing.
Second, why is every song a dollar? Shouldn't new bands with less etablished names sell their songs for less? Imagine if all cars or all meals or all clothes were the same price. You would know instantly that something wasn't right, that likely you were over paying for many of these purchases.
In short, the music industry's greed is making the problems for themselves. If they lowered prices appropriately, more people would buy their product. "Pirating" would be reduced to trace levels. Unfortunately, their greedy and short-term response is training people to download and helping to create the infrastructure to do it. Simply, they are bad business people who don't represent their stockholders very well at all.
June 28, 2005 12:14 PM | Reply | Permalink
"They have a fiduciary responsibility to their shareholders to try, by any means necessary, to bring copyright infringement to as close to zero as possible."
No--they have a fiduciary responsibility to their shareholders to maximize shareholder revenue in the long run. It's quite debatable whether bringing copyright infringement to zero is related to that goal.
Of course, as noted by many musicians ranging in sales from Courtney Love down to Janis Ian, what's good for the recording industry and its shareholders has little or nothing to do with what's good for the vast majority of musicians and for the Great Audience. And on this matter, I side with Janis.
June 28, 2005 12:46 PM | Reply | Permalink
Presumably Bright Eyes charged money for those Billboard singles, huh?
Of course musicians give some music away for PR purposes; I've never argued that they shouldn't or don't. I'm just arguing against the notion that they should give all of it away, forever.
And by the way, the notion that "only people who don't know what it's like to be a musician think like this" is garbage.
June 28, 2005 12:51 PM | Reply | Permalink
radiohead's album "kid a" was stolen and posted on p2p networks without their say-so. the result: the lp debuted atop the billboard charts (the main chart; not the indie rock chart) despite being very "weird" by conventional standards.
the band has since said they think napster was responsible for the huge sales.
wilco, as someone else mentioned, made their album yankee hotel foxtrot available for free online for a year before they finally found a record deal, and the thing still sold a ton of copies when it came out.
it's great to say that any band can put its music online for free if they want but why would anyone ever find your website? a big file-sharing network is different. your music can propogate and get passed around, if it's good.
June 28, 2005 12:51 PM | Reply | Permalink
Here's what you argued:
Regarding the second line, the opposite is true. It is much easier to build support for your band if your are giving away your work. More listeners, more name recognition. If you want to backpeddle now that's fine.Regarding the first line, it seems that to you, the only musicians with "alternative sources of revenue" are those that can sell a "millions of T-shirts" or fill a stadium. The number of bands that can fill a stadium or sell a couple of million T-shirts is very, very small. Are you saying that every other band out there makes no money off touring or T-shirt sales? Please.
(Both Bright Eyes singles are available for download on their website.)
June 28, 2005 1:28 PM | Reply | Permalink
The Supreme Court has ruled that if you invent something that lets people infringe copyrights, you're fine. If you invent something that lets people infringe copyrights, and you run around saying "Hey people! Use this widget to infringe copyrights!", and maybe you also make money from that, then you're in big trouble. That seems perfectly reasonable to me.
June 28, 2005 1:34 PM | Reply | Permalink
John Mayer. Dave Matthews Band. Both allowed extensive recording and trading of bootlegs, which, while not official band-produced recordings, were still used as an informal method of getting the music out there so people would want more. I believe REM took a similar approach.
Many up and coming acts continue to allow this, as well as posting one or two songs online and then selling longer CD's. It's a version of, "you've got to spend money to make money."
June 28, 2005 1:34 PM | Reply | Permalink
I'm not sure what Matthew's reasoning is here. As near as I can tell, he's contending that since it's easier to break existing copyright laws with P2P software, copyright holders (or the RIAA) shouldn't have the right, or shouldn't bother because it makes them look bad, to prosecute people who do it. Or else he's saying that since it's easier to break the law now, it never made any difference and besides, artists, by their nature, don't care about copyrights anyway.
None of which, in my opinion, holds the slightest water. All I can say, as a self-employed creator of original content ("artist" if you will"), is that I really hope *I* continue to have some strong legal recourse avaiable against people who steal *my* work and distribute it.
June 28, 2005 1:46 PM | Reply | Permalink
This is where I fit in. With the availibilty of the internet, most folks can find whatever niche they like in music. Many bands have themselves a website/myspace where they can promote themselves. These sites usually have mp3s for you to listen to, either just a couple of tracks to listen to to get a feel for an album or just entire albums free. This eliminates the need of P2P for me.
The relatively cheap cost of recording, hosting a website, getting cd's pressed, etc., is eliminating the need for the record companies that are loosing money. In some instances, some bands would be scared to death to sign with a major label for fear of their fanbase crying 'sellout'.
This is not every band/act. But most folks like specific niches of music. If the record companies don't start embracing all of these niches, instead of pushing the few acts that sell more albums than everyone, then they will slowly fad out. P2P or not.
http://www.wired.com/wired/archive/12.10/tail.html
June 28, 2005 2:08 PM | Reply | Permalink
I'm not big on the jail time, etc., and I think copyright law has been extended WAY out of proportion (that is, it lasts way too long), thanks to the lobbyists hired by those major corporations. So I think we do agree on a lot here.
But do you really favor getting rid of copyright entirely? Wouldn't that make the only means of making money for artists live performance (which isn't even an option for some types of artists)? How is a novelist to earn a living for his work--what prevents anyone from just getting a copy of the novel once it's out there, copying the text, and reprinting it themselves, giving the author not a dime, say?
I suspect your main beef is with the record companies, publishing companies, and film companies, and I'm agreed on a lot of that. But I think wiping copyright law off the books would end up hurting the little guy quite a lot. That's even true of the medium-size guys who have enough name recognition that they can self-publish (say, Bob Mould, who's written a bit on this subject).
June 28, 2005 2:14 PM | Reply | Permalink
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.
[...]
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
[...]
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Thomas Jefferson about Article 1, Section 8 of the American constitution. Full text here.
June 28, 2005 2:19 PM | Reply | Permalink
Bit Torrent is a great piece of technology that solves a very real technical problem (how to get a large amount of data from a place with limited bandwith to many users as quick as possible). It has created a whole new concept for software ("swarming"). It helps a lot towards keeping the internet a democratic place - where the ability to dissemate information does not depend on the money you are able to spend. This technic is as least as valuable as all Jackson Songs taken together and the inventor should be able to profit from his ingenuity.
June 28, 2005 2:29 PM | Reply | Permalink
Sigh. Here's what you said in response to my first post:
I'm just trying to argue with the notion -- foolish, I think -- that any band would be crazy to give any of its music away.
Please attempt to understand that I never expressed this foolish notion. I said that any band would be crazy to give all of its music away. Of course it is useful to give some away to start in the form of demos and so on, but soon "name recognition" has to turn into earning a living, unless we are talking about a bunch of trustafarians. You helpfully proved this with your example of Bright Eyes, who now charge money for their CDs.
Of course other, non-massive bands make money off touring and T-shirts. My point is that if it is their only source of income - if they have never sold and will never sell their music - then they are likely to make a very poor living, ie it is not a practical "alternative source of revenue". Particularly, the "name recognition" that leads to a profitable tour is still in the vast majority of cases owing to CD sales and chart success.
Why not demand that writers give away their books for free and make their living from readings and coffee mugs? It's just silly.
Furthermore the notion that any band should have to be able to "do it live", and so we will only pay them for touring, evinces a highly conservative notion of rock music. Studio recording is an art in itself. How are electronic musicians who do not perform live supposed to be able to pay the bills? By selling branded mousemats?
June 28, 2005 3:29 PM | Reply | Permalink
Two small points that don't really rflect on the topic at large. One, by virtue of the fact that movies most often require far more people than music to produce, they are typically more expensive to make.
Two, the fact that the movies may be crappy in your opinion doesn't mean they deserve a different level of copyright protection. And okay, three, I'd argue that the quality of movies is not the main driving force of the downturn in box office receipts. To my mind, it has far more to do with the increased quality and decreasing price of home entertainment (large TV's, excellent speakers, cheaper DVD's, etc), as well as with the physical hassle of going to the movies. Not to mention individual event expense. Sure, a nice home theater costs a mint to set up, but once it is, it's 10-20 per DVD as opposed to 8-10 per person attending.
June 28, 2005 3:31 PM | Reply | Permalink
I'll take the other side of this argument -- movies.
In the 50s, as TVs were being sold, the movie industry worried that people weren't going to bother going to theaters anymore. So what did they do? Widescreen format. Better sound. Smell-o-vision. (Okay, that last one didn't really catch on.)
I think there's going to be a market for films in theaters for a long time to come. They may need to make enhancements to further the quality gap between the theater experience and home entertainment, but there are lots of areas for improvement.
And frankly, teenagers are going to want to have someplace to go on the weekends.
Sure, it would kill off the home video market. And this would cause an effect on the entire industry. But it wouldn't kill the content.
June 28, 2005 4:15 PM | Reply | Permalink
I am always shocked by how many on the left think that intellectual "property" (a coinage as dishonest as the "death tax") is a law of nature, instead of a now largely obsolete attempt to derive rents from artificial scarcity of goods that would otherwise be free. The idea that the end of copyright would be the end of creativity is ridiculous.
On the left? Surely you jest. The left is where the anti-big business, anti-copyright, Slashdot-reading youthful downloaders reside.
Surely you jest in your last sentence, as well. Who ever used the phrase "the end of copyright"? Have you somehow convinced yourself that Yglesias used that phrase? He clearly said that music-making would continue unabated, while movie-making would no longer be profitable and therefore would become a much smaller-scale endeavor.
Where is the money to make Batman Begins Again going to come from, if profits are as unlikely as they would be if intellectual property is outlawed? Are all the thousands of low-level stagehands, computer people, technical advisors, personal assistants, stuntmen, carpenters, set designers, sound editors, digital compositors, and extras going to keep working for the sheer thrill of creativity? I think it's more likely that we'd return to the days when movies were made by local entrepreneurs who carried all existing prints around with them as they toured the country by truck, and the occasional rich patron put up the funding for a money-losing work of art.
I thought people on the LEFT were supposed to be the ones who want a pony for everyone and are oblivious to why people are less likely to do things that are unprofitable. Oh well.
June 28, 2005 4:33 PM | Reply | Permalink
Who ever used the phrase "the end of copyright"?
Sorry, my bad; this should be "Who ever used the phrase 'the end of creativity'?".
The end of copyright is certainly a plausible idea.
June 28, 2005 4:35 PM | Reply | Permalink
"Sure, it would kill off the home video market. And this would cause an effect on the entire industry. But it wouldn't kill the content."
Well, if you kill off 65% of the revenues, I'm not sure why you think that wouldn't kill off the bulk of the content...
June 28, 2005 6:06 PM | Reply | Permalink
This is off, I'm afraid. Bono and the Edge don't need multi-million budgets to sound like U2. Anyone with access to equipment of moderate quality and an expansive vocal register can sound like U2. They only need corporate mega-bucks to get the U2 marketing treatment.
On the other hand, at Matt was saying, big budget movies would be impossible. No one would ever recoup the investment. So you are wrong. This isn't an indie vs. corporate thing.
June 28, 2005 7:28 PM | Reply | Permalink
Let's take as our starting point one of Matt's assertions: that movies are expensive to make and would die without copyright protection.
point 1: movies are not necessarily expensive to make. we all know a number of the best movies are indie productions, and we all know that throwing money at a production does not guarantee a good movie. and as technology advances, special effects will cost as much as a desktop computer.
point 2: the holder of a copyright, or at least the person applying for it in the first instance, probably a writer, is the least rewarded person in the whole process.
You need to understand that the whole movie model relies upon the industry's stranglehold on distribution. It's a basic monopoly system that gives a handful of execs unlimited cartel power and disproportionate rewards. Thus, execs are perfectly able to be profilgate with their expenses, lavish with their salaries and utterly careless about the amount of trash they produce, because they know that one blockbuster will save them.
Breaking that monopoly and that M.O. will not destroy movie-making. It will simply mean that, instead of paying tom cruise and his like 20 million dollars per movie and spending a fortune greasing palms in the industry, less cash will be more evenly divided among the right people, fewer crap movies will be made, and the industry will end up being dominated by the creative people who conceive and write the stuff, not the people who control the finances.
June 28, 2005 8:19 PM | Reply | Permalink
"Sure, it would kill off the home video market. And this would cause an effect on the entire industry. But it wouldn't kill the content."
Well, if you kill off 65% of the revenues, I'm not sure why you think that wouldn't kill off the bulk of the content...
Because 35% of A LOT is still a non-trivial amount. The home video market is huge, but it's also relatively new. Losing that revenue would hurt, but I doubt it would be the end of movies as we know it.
Maybe ticket prices would go up. Maybe salaries would drop. Maybe they'd make fewer movies, or maybe they'd just spend less on the ones they do make.
June 28, 2005 10:12 PM | Reply | Permalink
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