For a couple of hours this morning the Supreme Court Justices heard arguments in the MGM-Grokster appeal. It pretty much sounded like the two previous cases that were argued in that under current law producers of products that have substaintial non infringing uses can not be liable for the actions of the users. There is more to the story than what RIAA spin would like us to believe. I think it’s also true that the software companies know damn good and well what’s being done with thier products, that is, violating copyrights by not paying for the music or movies they download.
It’s not about starving artists, either. There were pics today of some young, bohemians with protest signs saying how file sharing was costing them their living. A barefoot hippie chick with a guitar and a protest sign isn’t the victim in this case. In fact at this point if she put her work online she may just make more and sell more than with a major label deal. As an artist on a major, you have to sell a few million units to make any sort of real coin. This essay by artist/producer Steve Albini offers some insight into the process. Though it’s a bit dated, it does give an inside look as to what the record biz is like for a “baby band”. Of the scores of baby bands I’ve worked with over the years as soundguy, tour manager, production manager or any combination of the three, exactly one has become a mega band. IOW, kids, the chances of becoming a major pop star are pretty slim. Sorry to burst the bubble. Another act I’ve known for a while pocketed more money selling 50,000 units in few months with an independent than with the 300,000 plus with the previous release on a major, while concert attendence remained steady. It’s the labels that are losing money, though just how much is not quite known. I don’t have anything against the labels per se. I’ve worked with artists signed to most labels and also have worked directly for the labels. I also owned a small label in the early ’80s.
In Wired’s coverage of the hearing today Dan Glickman, head of the Motion Picture Association of America, said that the case “has to do with the future of the movie and music business. If people leech off the system for free … music and movies won’t get made.”
I agree with Dan about one thing, it does have to do with the future of the movie and music business. Though more specifically it has to do with the major players controlling the distribution and medium of the content they sell and imparting their will on the distribution and medium of anyone else’s content, as well. It has nothing to do with saving arts or the artists and everything to do to retain the near absolute grip on promoting, distributing and selling records and movies. In recorded music specifically, the established players benefited substaintially each time the medium changed. When music went from vinyl to tape, the labels profited handsomely from not only reduced costs, but from catalog sales in the new medium. This was particularly true when CDs hit as there was a downturn in the biz and the sale of midline catalog that had already recouped, already been promoted was basically free money for the cost of being mastered and slapped onto CD.that was a bonanza for both artists and labels alike.
Another soundbite from the seemingly improptu post hearing press conference…
Songwriter Lamont Dozier, who wrote the Supremes’ hit “Stop! In the Name of Love,” said he wanted to ask the Supreme Court to “stop (illegal file sharing) in the name of creativity.”
He said if this problem existed in the 1960s, “we never would have had a Motown.”…
Using the Motown era as an example of equitable and responsible business dealing in the industry is revisionist history at best. Many artists, players and songwriters were basically swindled out of any of the rights or royalties they had to the songs. Lamont, did you forget that Motown filed a US$ 4 million (in 1967 dollars) suit against you, Eddie and Brian? Or about the US$22 million (again, in 1967 dollars) countersuit you guys filed? You and your partners have made a significant contribution to music and have penned some truly iconic tunes. I love your stuff, but you guys didn’t need file swappers stealing from you a couple of pennies a time. The label was taking it by the truckload. The amount of money lost during the Motown era makes the file swappers look like 12 year olds and grandmas.
From the other side…
“Nobody is suggesting that piracy is good,” said Fred von Lohmann, attorney for StreamCast. While copyright owners have a right to protect what they have created, he said, “it doesn’t entitle them to control what others have created.”
Piracy isn’t acceptable, even if it is difficult to judge the impact. I think the copyright owners should be able to sue infringers, as long as they follow proper legal guidelines and not those shady DMCA subpoena rules that the courts struck down. That way perhaps they won’t sue 83 year old dead women. OTOH, I think it’s counterproductive to pursue swappers in this manner. It’s basically a combination publicity stunt/ scare tactic. Claims of hundreds of millions in lost profit are made, though the settlements in each case are a paltry couple of grand. Using a carrot and stick method, with no carrot, the swappers will only be driven underground further making it more difficult and more expensive to find. These are potential and current customers. Stop using lawyers and start using ideas and technology to solve this problem. Others from both within and outside the music biz are starting to develop strategies and business models for the sales of online music.
“it doesn’t entitle them to control what others have created.”
That bears repeating. The issue here is the continued control of not only the distribution but the medium of the content as well. In selling lots of copies of physical media, distribution is key and as a music artist, if you don’t have distribution through a major, it’s going to be difficult for you to get your work out. Over the counter music retail is all about big box these days. Target, K-Mart, Wal-Mart, Best Buy. If you can’t get into there, even with an explict lyrics disclaimer, it will be difficult to sell a multiplatnum release from a major artist. The independent stores are doing strong in some areas, but by and large they have dwindled not due to swapping, but due to big box. When Best Buy can loss leader the Billboard Hot 100, Local Joe Records is going to have a difficult time keeping up with them. If you control the distribution, you control the market.
Even with a legal sharing alternative like Weed or legal download like iTunes, it takes the control from the current system. That’s the greatest danger, allowing control of future technologies to be based on what the dominant content providers think is right, regardless of what the market would dictate. Given the past history of the industry, the power to dictate technology very well may be used not only against unlawfully infringing, but also against legit businesses that wish to use the technology to compete against the established players.
