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Will This Genie Ever Go Back In The Bottle?
For several years now, the distribution of free music online has been evolving into a bitter, costly and signficant test of whether new information technologies will change the nature and meaning of copyright, or alter the ways in which culture and ideas have been owned, marketed and distributed. The Net has made possible, for better or worse, the free acquision of music and other kinds of intellectual and creative products.
MP3 technology -- a format which jumped from obscurity to ubiquity in 1999 -- has turned out to be revolutionary. Millions of people whose access to music was previously limited to radio and CDs suddenly had instant and free access to much of the music recorded in modern times. MP3 sparked a cultural and economic revolution that is just beginning to be understood.
An entire generation has grown up seeing the acquisition of music as a right. This generation has a voracious appetite for music, something that should please the makers of it. Industry executives and many artists, of course, see the way they satisfy that appetite as nothing more than a pervasive form of thievery.
A number of artists have bitterly complained that the downloading of music on sites like MP3.com is simply piracy. They have criticized writers like me (with justification) for not highlighting artists' rights as well as those of music lovers. Friday's ruling by a federal judge against MP3 was the clearest and most powerful blow yet struck against the by-now deeply ingrained tradition, especially among younger music lovers, of acquiring vast music libraries for free. MP3.com could face stunning penalties.
At issue is something complicated and important, something not taken into account, or even acknowledged, by the Federal court ruling. There is hardly anyone reading this who hasn't acquired some form of free intellectual property on the Net, from music to text to software. Artists definitely have a right to be paid for their work, but branding a whole generation of music fans thieves seems simplistic, even self-destructive.
The question now becomes political and cultural, as well as legal and technological. Judge Rakoff issued a startlingly brief order Friday holding MP3.com "liable for copyright infringement." The suit, brought by RIAA (The Recording Industry Association of America), a consortium of the world's largest record labels, seeks to shut down MP3.com. But over the weekend, some music industry officials, including Paul Vidich, an executive vice president for Time Warner, said RIAA wasn't trying to put MP3.com out of business as much as force it to change.
The court found that MP3.com had violated copyright law by creating an online database -- MyMP3.com -- of 80,000 major label records. The ruling doesn't affect the use of MP3 compression technology (not owned by MP3.com) to make copies of music via the Net.
It follows a growing number of lawsuits -- some by recording artists like Metallica and Dr Dre -- against Napster. RIAA also has a suit pending against Napster in federal court. MP3.com shares dropped sharply in late Nasdaq trading Friday afternoon.
As strong a victory for the music industry as Judge Rakoff's ruling sounded, it seemed both short-sighted and far from clear cut. MP3 has altered the music industry for good. Shutting down MP3 and Napster would hardly mark the end of the battle.
"The shame here," a dissident, savvy music industry executive said in a phone interview over the weekend, "is that the record labels could have embraced MP3 and Napster, rather than going to war against them. What they don't grasp is that while piracy issues have a lot of validity, Napster constituted a rebellion against monopolistic music industry practices and greed, as well as a copyright problem. Instead of reforming, and grasping a real chance to change, the industry simply used the most heavy-handed method in dealing with these issues. Those of us who know the Net know this ruling will last for about a week. Piracy issues aside, the industry has a full-blown rebellion on their hands. These kids are never going back to the old way of buying music. We need a new system that responds to them and really does protect artists."
There were hopeful signs over the weekend. Danny Goldberg, one of the industry's most enlightened execs, and chief executive of Artemis Records, an independent label that releases CD's and runs Internet radio and music subscription services, said of music-sharing: "It seems counterintuitive, but an increase in free downloads coincided with an increase in paid sales. Particularly among the young audience, the people who are most wired, the evidence is that it's bonding a new generation to music." Goldberg's comments suggest that at least some leaders in the music industry grasp that new transmission technologies could be good both for the music industry and for artists.
History suggests that once new technologies like MP3 and Napster exist, they will be used and replicated. Many music industry executives believe the recording artists would make more money, not less, if they embraced digital music-distribution technologies. When the record labels went after MP3, the industry triggered the Napster rebellion. Napster software, spreading wildly on the Web, allows MP3 users to share files. If suits against Napster are successful, why wouldn't yet another technology crop up? In fact, it already has, in the bumper crop of programs both client and server which basically treat the Internet as a searchable and vast remote filesystem.
Pretending otherwise doesn't protect the rights of artists, it simply sets them up to get ripped off forever, and needlessly politicizes the tradition of free music among younger consumers. Selling music more innovatively just might permit artists to get paid and let consumers keep their new-found ability to acquire more music for less money.
Brian Ploskina of inter@activeWeek.com quoted Gene Hoffman, chief executive of EMusic.com, an online MP3 store and showcase as likening the free music legal battles to prohibition, doomed efforts to restrict the sale of liquor. "In the 20's," he said, people made a lot of bathtub gin, but they don't do that today because they can buy it for $20." His well-taken point is that music-downloaders would probably pay for music too, if the prices were more affordable.
It was an apt analogy. The music industry and the Temperance movement both thought they could legislate the social tastes and desires of millions of Americans. Whether they have merits to their arguments or not, history says their task is impossible. Recent legal actions make it likely that key distribution points for both MP3 and Napster -- particularly universities and other institutions that till recently have allowed music distribution software on their servers -- will be shut down. Others will obviously emerge. The legal actions won't stop the proliferation of music-transmission software, or the epidemic resentment and anger at the way the greedy record labels operate. The music industry is in the odd position of winning one court ruling after another while alienating an entire generation of customers.
For years now, millions of music lovers have been acquiring diverse kinds of music for nothing, making music more popular than ever. In l999, the record industry posted an 8 percent growth in revenue -- from $13.7 billion in l998 to $14.6 billion in l999 -- while the number of audio and video units sold rose from l.12 billion to 1.16 billion, according to RIAA statistics. Many executives believe those numbers would have been higher if the record industry were using MP3 for sales and promotion. Hundreds of music-sharing sites exist all over the Net and Web besides MP3 and Napster, including ones which take advantage of instant-messaging systems and privately-built and run Web sites.
Do recording executives really believe that music fans will suddenly give up on acquiring diverse and numerous forms of music for free and go back to buying a handful of expensive CDs a few times a month? That wouldn't protect artist's rights or those of music lovers. This digital genie isn't going back into the bottle. Successful negotiatioins between MP3.com and the music would be the sanest step yet in the music wars, and a healthy precedent for other businesses who sell intellectual property as well as artists.
Note from timothy: Thanks to twiin and other readers who sent word of Metallica's upcoming online chat tomorrow (2nd May 2000) as part of an ArtistDirect promotion, where you can tell them what you think directly. I quote: "Hold nothing back: this is Metallica, after all. They can take it."
Why is it that Jon Katz not only refuses to mention artist's rights except for this one line but also refuses to accept the fact that people who misappropriate copyrighted material without rewarding the copyright owners is stealing.
Actually, he mentions artists rights in at least one other, and probably two depending on your interpretation. The funny thing is that you quote both of these lines later in your post. Now, as for your statement here, I don't entirely agree. People "misappropriate copyrighted material" because the current system of distribution doesn't work. This isn't the fault of the people downloading MP3s, it's the fault of the music industry. People are realizing just how much music is out there, and they want access to it. Up 'til now, they knew what the top 40 was and beyond that, they had very little opportunity to hear anything else. CDs cost too damn much to buy on a whim. If you haven't been able to listen to the music first, you can easily end up with a $16.99 coaster (or maybe sell it to a used cd store for $3). What makes things even worse is that most radio stations play the exact same crap. They're all owned by the same people. Now people can listen to all sorts of music that they wouldn't want to buy because they hadn't heard it yet. They can hear more tracks from a band rather than making their purchase decision based on the one song they heard on the radio. I've downloaded a bunch of mp3s, but it hasn't cost the music industry a dime. If I liked the group, I bought the cd. If I didn't like them, I ditched the mp3s. Who got screwed? The main problem is that the RIAA is used to being the one that does the screwing. Now they won't be able to do that. Signing an artist up for a 5 album contract, spreading the good songs out across those 5 albums and filling the rest of the space with crappy filler songs isn't going to work anymore. Sorry if I don't shed a tear for them.
It isn't like if I started printing copies of his books and gave them away he would respond with "Hey, that's OK information want's to be free,anyway"
You're probably right about this. Until it happens we can't really know. Jon, care to enlighten us? What do you think about this claim? It strikes me as being similar to Jeff Bezos' claim that the patent system is screwed up, but that he has to play by the current rules in order to survive. Katz wants to make a living from his writing, so he needs a way to do that, even though copyright is becoming even more perverted than the patent system. Personally, I'd like to see Katz put his money where his mouth is and propose a solution and show that it can work by using that solution for his own work.
Of course not, and that is exactly why they are trying to shut down Napster.
His point here was that shutting down Napster and the others won't help. There's too many options out there and there are more cropping up all the time. He's saying they WON'T go back to the old system, and the RIAA can't make them go back. That's why suing is not the answer.
Why wouldn't it? Currently the rights of artists to decide who distributes their copyrighted material is being abused regularly by Napster users. Secondly, it would also protect the right of artists to be paid for their work.
This is true, but you also ignore the fact that the RIAA is doing the artists they represent a major disservice by overpricing their products. It's been shown time and time again that the more overpriced a product is, the more theft you will see. If the RIAA wasn't so busy gouging its customers, and if the system wasn't so broken, we wouldn't have this situation to begin with. They could fix it, but they won't do that. Why? Greed.
You may say that that still doesn't make it right, and maybe you have a point. That won't improve the situation though. The music industry's own greed is setting itself up for a fall. It's not the artists. They don't have much alternative right now. They sign over the ownership of their music in order to make a living. They could do much better, and so could their fans. We just need to get the RIAA out of the way. If they sold their albums for a reasonable price, more people would buy them, and if the RIAA wasn't sucking up the vast majority of the profits, the artist would get a much bigger cut of the sales, and wouldn't have to sell as many albums to make a good living. On top of that, more artists would be able to make money because people could buy more music. So rather than just those who get the most promotion by the industry making money from their work, many more would be able to profit from their music.
PS: Why does he keep calling MP3.com MP3? How out of it can he possible be?
Katz needs an editor... or a better editor if he already has one.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Now normally I just read a JK column and shake my head, but:
>>Friday's ruling by a federal judge against MP3
>>was the clearest and most powerful blow yet
>>struck against the by-now deeply ingrained
>>tradition, especially among younger music
>>lovers, of acquiring vast music libraries for
>>free. MP3.com is certain to face stunning
>>penalties.
John - please. The suit was about my.mp3.com, not about the main business of mp3.com. And it ISN'T about getting music for free. It's about control.
my.mp3.com lets you listen to music that YOU HAVE BOUGHT in a more convenient way. It is nothing like napster, or cutemx, or gnutella or
I'm sure it took you a fair amount of time to write this column. Could you *please* spend just a bit more time up front checking the facts first??
"was has"? Sounds like Katz has been reading Dr. Dan Streetmentioner's guide to time-travel grammar....
Then again, if anybody could be said to be channeling the spirit of the Sirius Cybernetics Corporation, it has to be Katz. :-]
I use Macs for work, Linux for education, and Windows for cardplaying.
While I personally believe that music should be free (or for that matter, all art should be free; hence my personal unwillingness to sell my art) and available to all, I do understand that as an artist, you must devote all your time and energy towards the art and cannot split it with working a fulltime job. I do this now and let me tell you, my art suffers. A lot.
HOWEVER.
The vast majority of the shit that comes out of the recording industry today is vile and base. It does not succeed by it's own merits, it succeeds by the merits of the corporation's large and well-funded marketing machine.
No longer is music made for music's sake. (I realise that this is a naive view, but bear with me here, I'm a makin' a point.) It is made with the singular purpose of selling as many possible records within a very short amount of time.
I absolutly refuse to support that kind of nonsense any longer. When the day comes that music is pushed by the people that make it and those same people make the large percent of the profit, is the same day that I will stop taking any music that I still bother listening to and start BUYING IT. (I'm not gonna start with the inflated price of CD's..)
How many here believe that 50 years from now, people will listen to britney spears and the spice girls and think, "Wow. That stuff had soul!"
Go back thirty to fifty years. Louis Armstrong.. eternally cool. You know?
I went to a club last night and it was open mike night. There were musicians and beatniks galore. I may be making a generalization here, but the people there weren't in it for the money; they got beer, bagels and applause if they were lucky -- beer and bagels if they weren't.
That's the way music should be.
===
I realise that this was a completely incoherant post. My ability to make any sense seems to have taken an airplane from New York to New York.. the long way.
My apologies. I know that my point was in there some where.
Rami James
Pixel Pusher
ALST R&D Center, IL
rJames.org - illustration
Every time I read about the RIAA or the MPAA flailing against internet media distribution, it reminds me of a quote from the 1939 Robert Heinlein story, "Life-line".
In Life-line, an inventor has built a machine that can accurately determine the day a person will die. He is sued by the entire life insurance industry, who want to put him out of business because they are being bankrupted by his accurate predictions.
In rejecting the claims of the insurance company lawyer, the judge says:
Before we leave this matter I wish to comment on the theory implied by [the insurance trust lawyer], when you claimed damage to your client. There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped or turned back, for their private benefit. That is all.
Same today as it was 61 years ago.
Sorry John - but that doesn't get you off the hook.
./ will know substantially more on the subject than u (that isn't necessarily a bad thing. A journalist can't be an expert in every topic that they report). But get your facts straight and don't try to mix topics in an imprecise or confusing way. The general public would be much more forgiving - but it won't happen here.
The whole thrust of the piece is about downloading music for free.... metaphors about prohibition, etc etc.
my.mp3.com doesn't let you download music for free. Hence my annoyance. If i didn't know better I'd assume it DID because that is the slant of the whole report. It's like all those DeCSS stories that claimed that it was a tool 'that let you copy DVD's'. Anyone who did a second of reserach knew that wasn't the case, but those that are being EDUCATED by the column about the topic are being misled (whether deliberate or not is another debate). Sorry, but that's shoddy journalism in my book.
You seem to have some respect for the 'geek factor' and the techno-prowess of those that read this site. Look how fast the this comment was moderated up. Seems the opinion isn't just mine.
Realize what your target audience is here . A lot of those that will read your columns on
I'd be impressed if you (or somebody else) wrote a well thought out piece on the reality behind the whole my.mp3.com fiasco. Similar to what the NYTimes recently did with DeCSS.
Wow, I have never read a more content free article in my life. Jon Katz's entire article contained no opinions nor offered any insights but simply summarizes news that has already been on Slashdot or is easily available from glancing at the headlines provided by the any portal or news site. I hardly ever respond or read Jon Katz's articles but delight in reading the responses he evokes but I recently decided to actually read his articles and have now discovered why he is so badly tolerated by slashdotters. I have responded to the only parts of the article that are actually original content as opposed to regurgitating of readily available news.
Artists definitely have a right to be paid for their work, but branding a whole generation of music fans thieves seems simplistic, even self-destructive
Why is it that Jon Katz not only refuses to mention artist's rights except for this one line but also refuses to accept the fact that people who misappropriate copyrighted material without rewarding the copyright owners is stealing. It isn't like if I started printing copies of his books and gave them away he would respond with "Hey, that's OK information want's to be free,anyway"
Do recording executives really believe that music fans will suddenly give up on acquiring diverse and numerous forms of music for free and go back to buying a handful of expensive CDs a few times a month?
Of course not, and that is exactly why they are trying to shut down Napster.
That wouldn't protect artist's rights or those of music lovers.
Why wouldn't it? Currently the rights of artists to decide who distributes their copyrighted material is being abused regularly by Napster users. Secondly, it would also protect the right of artists to be paid for their work.
This digital genie isn't going back into the bottle.
Agreed, but before the Record labels will embrace the digital revolution they will try their best to make sure they are not going to be robbed blind before investing in or creating an online business model.
Successful negotiatioins between MP3.com and the music would be the sanest step yet in the music wars, and a healthy precedent for other businesses who sell intellectual property as well as artists.
This completely true. If record labels can make deals with MTV and radio stations I don't see why similar deals could not have been made with MP3.com. From the exchange between MP3.com CEO and the RIAA representative when all this started it seems the RIAA just wanted to be unreasonable from the start. This leads me to believe that they are interested in creating such a service themselves if not now then later on in the future and that is why they decided against even considering MP3.com's offers to license the music.
PS: Why does he keep calling MP3.com MP3? How out of it can he possible be?
You know, even a month ago, I'd a have disagreed with Jon violently about this. But now, a month later, I've had my eyes opened. I'd never really experienced the joy and convenience that free and ready access to music outside my collection brought.
/. and the purely corporate attitude of the straw-man that you would propose the music idustry to be...and that there are already solutions in place, on the ground, that provide that?
But then I found a source of free and easy-to-obtain music, so that I can stand in my kitchen and listen to stuff I wouldn't ever buy without testing it first. I found some of Robert Palmer's solo stuff -- really good -- and an a capella group called _The Blenders_ -- musically better than The Bobs, but not as intellectually challenging. I got a bunch of old Elvis Costello CD's, with their bonus tracks; by God, I'm updating my vinyl.
And I'm confident that the RIAA won't be coming after me. They'll never find me, and even if they did, they wouldn't dare bother me.
BECAUSE I BORROWED THESE CD'S FROM MY LOCAL LIBRARY. What a lot of this debate misses is one key fact: there are ways of getting the good parts of MP3 and Napster without breaking the law. That's why the music industry wants you to be tied to a physical object, and that is why they're right. I have to return these CD's, but I'll buy some of them. And I won't be able to keep the ones I don't buy. And that's a perfectly reasonable compromise: I can listen to stuff that I don't own, without taking the artist's and the companies legitimate right to make money.
Now why is that so hard, Jon? Why is it so hard to distinguish between "borrowing" and "stealing", and why is it so hard to understand that there are middle grounds between the purely anarchistic attitude of