Helping Artists Online

Entertainment conglomerates have skillfully -- and at great cost -- distorted the purpose of copyright law and are jumbling two very different issues: the rights of artists, and the rights to exorbitant corporate profits. They aren't the same thing. Most artists need more protection from media companies than from college kids downloading music online. How can the rights of artists be protected on the Net?

Lost in the Napster and free music legal brawling is the original purpose of copyright. Congress originally enacted copyright protection not so that ideas and intellectual property could be owned forever and licensed by big companies. These laws were enacted so that authors and artists would have an incentive to produce new works and to encourage the free and rapid circulation of ideas and opinions.

Congress reasoned that if anybody could steal anybody's work at any time, authors would have no motive to keep writing books and other works. And since books and documents were cumbersome and expensive to produce, copyright laws were easy to police. They aren't easy to police anymore. The Net produces high qualities copies of almost any text, audio and video you'd like -- quickly and usually for free.

Today, the purpose of copyright laws seems to be earning even bigger profits for media conglomerates hiding behind the mantra of protecting artists. But 18th-century notions of copyright doesn't make sense in the year 2000. Nobody can argue that the sharing of music online necessarily deprives the music industry (or artists) of any incentive to create music. And the Net is the greatest medium yet for ensuring the rapid dissemination of ideas and opinions, a boon that should be protected, not shut down.

There is more music making more money in more forms -- generating $15 billion in profit in l999 -- than at any time in world history. In fact, culture in many forms, from music to movies to several varieties of publishing, is flourishing. It would be tragic to create a more restrictive environment around the Net before we even try and figure out how artists can get the protection and compensation they deserve. A study released last week by Jupiter, a Net commerce research firm, says that online music users are 45 per cent more likely than nonusers (http:www.nytimes.com, Thursday July 27, 2000) to have increased their total music purchases over the last six months. How, exactly, do artists benefit from reversing that trend?

The new purpose of copyright may be the reasonable protection of the rights of artists and other creative entities; namely to ensure that they be paid fairly for their work, although perhaps in new and different ways. (An equally important copyright trial concluded this week in Manhattan, where movie industry lawyers have filed suit challenging the online publication of DVD source code). Copyright laws also need to recognize that access to culture and music has become a tradition and right for tens of millions of people, mostly younger Americans who grew up using the Net, and who are now routinely branded "thieves" and "pirates" by corporate publicists and their close friends (corporations are the biggest contributors to political campaigns), congressional lawmakers. Music lovers also need some sort of fair-use protection, granted Americans offline but stripped by the DMCA (see below).

It's absurd to give giant conglomerates the right to speak for artists. Music companies are to artists what wolves are to sheep. If they could hire lobbyists, wolves would no doubt enact stringent legislation to to protect the rights of sheep to be controlled and devoured by them. That's more or less what the recording industry has sold to Congress.

In the 1998 Digital Millenium Copyright Act, Congress made it a felony to write and sell software that circumvents copyright management schemes. In the judgment of Congress, regulating users would be nearly impossible, but regulating the code that users use would be a lot easier and more technically feasible. It simply isn't clear yet if they were right or not (if you're a college student losing or about to lose Napster, it might seem that they were.) The DMCA eliminates "fair use" provisions of law that would permit at least some sharing of music. Tracking software like that deployed by the recording industry against music fans in recent months makes no distinction between "fair" and reasonable use of content and theft.

The issue has been thrown out of whack, the law tilting sharply towards media conglomerates, in part because individual citizens and music fans have no lobbyists.

The question of artist's rights is complex and urgent. Many artists not under contract to large corporations can't get their work seen or published at all. Many artists who are under contract feel exploited by recording companies, who take a disproportionate share of profits, and who make enormous margins on conventional music sales. Millions of music lovers feel that they are overcharged and offered too few choices and controls about the music they want to hear.

The Net provides a marketplace of cultural exchange, benefiting new artists and to music lovers. It's not simply a matter of theft, but of creating an environment in which culture thrives. That needs to be legally and politically acknowledged. And many people in the music industry, though still a distinct minority, believe that the sharing of music online can generate enormous interest and revenue for artists, musicians -- and for record companies.

How can artists rights be protected on the Net? Maybe music-lovers could pay a flat fee to access music sites which share revenue with entertainment companies and artists. Perhaps artists can use the Net to begin selling their work directly to fans and the public. Maybe debit and other forms of transactional software can be used to charge small amounts of money for downloaded music, using some system that measures time or data. Maybe college students could pay a fraction of a cent for each song they downloaded on college sites, the overall volume generating a fair amount of revenue for artists and corporations.

How can artists be fairly compensated for the transmission of their work online? Until they can be, it's going to be difficult to get the free culture issue beyond the "you're-a-thief, no-I'm not" stage.

Comments

Constitutional Intent of Copyright

[coats]

The Constitutional authority for copyright follows from the following clause:

Article I
Section 8. The Congress shall have power...
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; ...

The right to copyright as property was not regarded as a fundamental property right by the founders, nor was it such under Common Law. The Constitution established that Congress had the authority to create this right subject to several criteria. The present copyright regime does not in any realistic fashion fit under those criteria:

• Present copyright term is not a "limited" term -- at least not in terms meaningful to a human being.
• Present copyright benefit does not go to "authors and inventors" as the founders would have understood those terms, but to some rather-removed third party.

The present situation is one where the publishing industry is engaged in wholesale theft--first, theft of the works from their true authors; then theft of what should be in the public domain (and thus the property of all of us) from us as a society. It is a vast leap from the originally-passed copyright term of 14 years to today's life plus 70 years!

There is in fact a currently-active suit denouncing the latest copyright act as unconstitutional -- see URL http://eldred.ne.mediaone.net/complain t.html

Solutions anyone?

[jyuter]

It would be tragic to create a more restrictive environment around the Net before we even try and figure out how artists can get the protection and compensation they deserve.

Unfortunately, all we get from Katz is a list of "maybes" with little analysis. It's always easier to say "X is bad" but it's considerably harder to offer legitimate realisic viable solutions.

Instead of constantly slamming the music industry, can we get a full analysis of how things should work taking in to consideration all parties involved?



Being with you, it's just one epiphany after another

There's some decent stuff.

[AugstWest]

When Phish was playing their NYE show in Big Cypress, they were relasing a couple of tracks from the show every couple of hours as mp3s.

They used eLicense. Yes, it can be gotten around, but not by everyone.

Essentially, you downloaded an mp3 and could listen to it 3 times before purchasing. After the third listen it was $1 to purchase it.

A buck a song seems fair to me. Get some decent traffic through your websites posting mp3s and it could be a decent revenue stream.

hmmm

[cybercuzco]

how bout the Lars Ulrich Digital Document Internet Transmission Enactment, or LUDDITE for short

Re:Linux Distributors == Recording Companies.

[_xeno_]

There is a difference - mainly, most programmers writing Open Source stuff expect it to remain open, and benifit some others. They don't expect any other sort of return, except maybe the gratitude of creating something useful to others. Most musicians actually feel the same way, they just want to be appreciated. At least until they "hit it big" or whatever.

Actually, most of the Linux distros are realatively harmless in this way. Although they include software written by people for free, they don't directly profit on that. After all, you could always go out and download all of it for free. What do they provide, then? A way to bundle it all together, so that it's gotten from one source. A way to install it from one source with some form of documentation. And, for those who want it, a place to go for guaranteed support.

How is this better? What are they giving back to the community? Well, by having RedHat, for instance, I was able to download RedHat 6.2 and burn it to a CD-ROM under Windows. Then I was able to install it, all for free, all realitively easily. What does that mean? Linux now has one more supporter. The distributions get more people into Linux, by providing and important service. In this way, they give back to the community simply by building interest, even if they do nothing else. Likewise, Corell Linux is getting my mother interested in Linux, and my brother is now becoming more interested in Open Source software then he was before.

What does the RIAA do? Well, they hype music (and distros similarly hype Linux), and they distribute it. Linux distros usually distribute some version for free. Does the RIAA? Nope. Does the RIAA want people to be able to sample the music first? Evidently not, they seem to think that the only use someone who owns a CD is is to listen to the music themselves. The only other thing the RIAA does it to try and force people through one channel of distribution - the RIAA themselves. Do any Linux distros do this? Not yet... The RIAA is more comparable to Microsoft than a Linux distro - they want (and seem to have) a monopoly, and are trying to crush anything that might topple their empire. I'd much rather see the RIAA declared illegal and let all the labels start actually competeing against each other.

Jefferson's thoughts on the matter

[Hard_Code]

Thomas Jefferson to Isaac McPherson
13 Aug. 1813Writings 13:333--34

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. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction ofman, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. 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. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

<rant> Think about that, and ask yourself if the public is being served when drug companies 1) pay off smaller companies so they won't produce that drug which will do the exact same thing as the major company's drug, but is much cheaper, and 2) whenever a patent is about to expire, they subtley and trivially change the chemical so that it is technically a different drug, but still has no benefit over the original, so that they can extend their patent-granted control. Should indigenous people's genes, or purely the concept of "one-click shopping" be able to be patented? </rant>

18th-century notions...

[klund]

But 18th-century notions of copyright doesn't make sense in the year 2000...

I would argue the opposite. The 18th-century notion of copyright DOES make sense today: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Get it? In my opinion, the 18th-century notion has two key words here: "promote" and "limited". Copyrights used to be 14 years, renewable for another 14 years.

It's the corrupted 20th-century notion that is fscked. The Sonny Bono "Screw The Public" Act had two clauses: (1) The Mickey Mouse clause, preventing anything Disney has even done from entering the public domain (95 years for works-for-hire), and (2) The Gershwin Heirs clause, keeping the Gershwins rich (life+70 years for works of individuals).

How does this promote useful arts? It doesn't. It promotes individual gains. Disney has borrowed greatly from the Public Domain and returned nothing. Bach's heirs didn't expect to be rich from their father's work; they wrote their own. The Congress has been bought and paid for. Art and science used to belong to the people (after 28 years). Now it belongs only to the richest campaign donor.

We have a moral obligation to fight the current copyright system. We must take back the public domain. A society with no public domain art is bankrupt.
--

Re:The most dangerous attitude I can imagine

[jheinen]

No one has a "right" to profit. Nowhere in the constitution is such a right given to anyone. You do have a right to try and make a profit by engaging in business, but succeeding and making money is not gauranteed. In a changing economy, the recording industry should have no expectation to continue making as much money as they currently do, nor should they have any expectation to be around five years from now. All they can hope to do is change the way they do business in order to adapt to the situation. If they fail at this, they should fall by the wayside to make room for others who do understand the new economy. This is the way the free market has always worked. Adapt or die.
-Vercingetorix

TINSTAAFL

[Raunchola]

"The Net provides a marketplace of cultural exchange, benefiting new artists and to music lovers. It's not simply a matter of theft, but of creating an environment in which culture thrives."

Jon, here's something for you to chew on, there is no such thing as a free lunch.

That aside, this is a matter of theft Jon. Yes, Napster is a great promotional tool. Yes, Napster has helped a lot of artists get recognized. And that's all fine and dandy. But your candy-coating everything with "It's net culture!" doesn't work. The musicians need to get paid like the rest of us, and while some people buy the music they get off Napster, others don't. But let me guess, they're only participating in this "culture" thing you rant on, right?

"Maybe music-lovers could pay a flat fee to access music sites which share revenue with entertainment companies and artists. Perhaps artists can use the Net to begin selling their work directly to fans and the public. Maybe debit and other forms of transactional software can be used to charge small amounts of money for downloaded music, using some system that measures time or data. Maybe college students could pay a fraction of a cent for each song they downloaded on college sites, the overall volume generating a fair amount of revenue for artists and corporations."

And maybe I could stand on my roof and shout nonsense. You know, with the methods you advocate above (excluding one), it's still in a zero-sum situation. Sure, we're selling CDs in MP3 format online, and that's fine and dandy. It's just too bad that the same amount of money will still be going to the record companies. And that's a Bad Thing(tm), correct Jon?

We all know that record companies are getting a really big piece of the pie, but there's nothing that we, the music fans, can do about it. Sure, we can all take up the Jon Katz rallying cry of "Culture! Free music! Culture!" But that's just plain bullshit. What good is downloading music off Napster going to do? It's not going to make the industry think "Hey, we're screwing these musicians in the ass," it's going to make them say, "See, nothing but pirates out there!" If anything is going to happen, it's going to happen due to action from the musicians themselves. They're the ones who are directly affected by the industry's ways. They're the ones getting pennies on the dollar. If more artists could speak out and say "Look what they're doing to us," I think it would work better than just having a bunch of Katz groupies downloading music off Napster, because at least it's genuine first-hand experience. Just downloading music under the shield of "Culture!" is going to do more harm than good IMHO.

--

Legal comments pending

[thesparkle]

Hey! How can artists protect themselves? By reading the bloody contracts presented to them by the recording industry.

Real simple. You sign, they own you. You want to be on MTV, hang out with Britainy Spears, open up for the Who, and snort cocaine in the back of a limo with a leggy supermodel? Sign the contract.

You want to maintain your independence and creative control and not have to sing songs penned for you by some numbnuts you never met? Don't sign. It is that simple.

Who protects the artists' rights, Jon? They do. They are grownups who should know better. They protect themselves the same way every successful entertainer, actor and athelete does: With a good lawyer, agent and accountant.

Don't like and want to change the system? Try this.

Don't buy new CD's or tapes.
Don't listen to commercial radio stations or support advertisers (if at all possible) who advertise on commercial radio stations.
Don't buy concert tickets.
Convince future artists not to sing contracts and contribute to the ongoing fodder.
(Don't be surprised when you find out this takes time and committment).

You can dream all you want about some imaginary utopia, you can imagine some warm, squishy world where artists and listeners/viewers/appreciators live together in peaceful, non-economic controlled state, but here is reality: the recording industry is a business which does this for the money. Deny the money enough and things change.

The fact that I have to remind you of this (yep you! The guy who gets a paycheck from a publicly traded, capitalistic, corporation) befuddles me to no end.

I'm the real katzy...

[KatzKrazy]

(Talking)
May I have your attention please, may I have your attention please, will the real jonkatz please stand up,
I repeat will the real jonkatz please stand up.....we're gonna have a problem here.........

(Verse 1)
Ya'll act like you never seen a editor troll before
jaws all on the floor
like sengan just burst in the door
and started whoopin your ass worse than before
they first were divorced
locking out all posters (aaaaaah)
It's the return of the...
"awww..wait, no wait, you're kidding,
he didn't just say what I think he did,
did he?"
and CmdrTaco said...
nothing you idiots, Cmdr Taco's dead
he's locked in the Geek House
long time /.'ers love jonnykatz
chicka chicka chicka jonkatz,
"I'm sick of him, lookit him
walkin around, trollin for who knows what
talking about not really much"
"yeah, but he's such a good writer though"
yeah, I probably got a more than a few screws up in my head loose
but no worse than what's goin on in your parents bedroom (eheheheh)
sometimes, I wanna get on /. and just let loose
and can, but it's not cool for people to talk shit about my posts
My bum is on your lips, My bum is on your lips
and if I'm lucky, you might just give it a little kiss
and that's the message that I deliver to little trolls
and expect them not to know what a dictionary is
of course they're gonna know what thesaurus is
by the time they hit 9th grade
they got the "Hellmouth", dont they?
we ain't nothing but morons
well, some of us panderes
have troll-armies who cut posts open like cantelopes
but if we can rework dead points and hype a lot
then there's no reason that I can't keep spewing the same rot
but if you feel like I feel, I got the antedote
geeks wave your cash around, sing the chorus and it goes..............

(Chorus)
I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up
cause I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up

(Verse 2)
Real writers are generally lucid and understand english
well I'm not, so fuck Webster and fuck you too
you think I give a damn about a webby
half of you critics can't even stomach me, let alone stand me
"but jon, what if you win, wouldn't it be weird"
why? so you guys can just lie to get me here
so you can sit me here next to timothy
shit, michaeal better switch me chairs
so I can sit next to CmdrTaco and Hemos
and hear em argue over who he gave head to first
little bitch, put me on blast on /. see
"yeah, he's cute, but I think he violated my rights, whee hee"
I should download the audio on MP3
and show the world how you invaded MY privacy (aaaaaah)
I'm sick of you little girl and boy posts
all you do is annoy me
so I have been sent here to destroy you
and there's a million of us just like me
who post like me, who just don't make much sense like me
who troll like me, walk, talk and blather like me
and just might be the next best thing, but not quite me.................

(Chorus)
I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up
cause I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up

(Verse 3)
I'm like a head trip to try to understand
cause my rants attract nerd-boy wannabe fans
you preach about to your friends inside you AD&D club
the only difference is I got the balls to bullshit it
in front of ya'll and I aint gotta be correct or accurateat all
I just get on the board and spit it
and whether you like to admit it (riiip)
I just bullshit it better than 90% you wannabes out can
then you wonder how can
trolls eat up these albums like valiums
it's funny,cause at the rate I'm going when I'm ninety
I'll be the only person left at slashdot flirting
pinchin Signal 11's ass when I'm jackin off with jergen's
and I'm jerkin' but this whole bag of viagra isn't working
in every single person there's a jonkatz lurkin
I am workin at burger king, drooling on your onion rings
or wandering around senseless in the parking lot, screamin I dont give a fuck
with his windows up and his system down
so will the real katzy please stand up
and put 1 of those fingers on each hand up
and be proud to be outta your mind and outta control
and 1 more time, loud as you can, how does it go? .................

(Chorus)
I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up
cause I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up

cause I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up
cause I'm jonkatz, yes, I'm the real katzy
all you other jonkatzs are just imitating
so wont the real jonkatz please stand up, please stand up, please stand up

(Talking)
haha guess it's a jonkatz in all of us........ fuck it let's all stand up

Now is the time

[Dan Hayes]

Well, unfortunately the current model on which the music industry is run means that an artist requires the backing of a major label to reach an audience of more than a couple of thousand. Thanks to the way in which they've sown up the market from recording to distribution, an artist who is outside of their hegemony is going to find it extremely hard to gain popularity or even just exposure.

Whilst the net is changing this, allowing artists to reach a potentially far larger audience without the "backing" of a major label, at the moment the key word is potential. Nobody denies that the net has potential, especially not the RIAA/MPAA, but people are still trying to work out workable models that benefit both artists and consumers. A lot of people are happy with MP3.com's business model, but I'm sure there will be a lot more progress in the next few years.

Unfortunately for us, the RIAA/MPAA have realised this huge potential at a time when it is still vulnerable to pre-emptive legislation. They want to chain and guide this potential whilst they still can and their resources are up to the challenge.

What does this mean? Basically, if the uptake of the net as a tool for artists takes off over the next couple of years, it will become next to impossible for the conglomerates to stop. We just need to get through these challenges.