The Heavenly Jukebox, From Hell

davecb linked us to a story at The Atlantic about the whole Napster, DeCSS, RIAA blah blah blah thats been all the rage with the kids these days. Talks about how this case is bigger then just Napster: its results will affect the future of democracy. It's a really well written piece that you definitely should read if you're following this stuff.

Comments

MotleyFool: `Intellectual Property Is an Oxymoron'

[Mike Hicks]

Just thought I'd point this out.
--
Ski-U-Mah!

Artists ARE being paid for non-commercial copying

[jms]

Napster is for sharing music. That in itself is not a bad thing. But when people systemically use the system to infringe on copyright, then I think Napster has *some* responsibility.

You're contradicting yourself. Is sharing music a good or a bad thing? Is it a good thing when it is done quietly, behind closed doors, by a few people, but a bad thing when it is used "systematically"?

Napster isn't fair use anyway. Music sharing is explicitly authorized by the copyright laws. In 1992, the RIAA went to Congress in a state of hysteria -- Digital Audio Tape was about to destroy the entire recording industry! The RIAA wanted, among other things, to receive a "royalty" on all digital recorders and media to compensate for the loss of sales due to personal, non-commercial copying.

Congress said, "Ok ... but if we give you royalties for non-commercial copying, then you have to agree that non-commercial copying is legal."

The RIAA, more concerned with destroying the DAT format, agreed, and both Congress and the RIAA released announcements that an agreement had been reached that would break the legal gridlock, and bring digital recording to the masses. The result of this little insider lovefest is known as Title 17 Chapter 10.

Title 17 Chapter 10 is a nice little exercise in dirty lawmaking. Let's go through it.

Section 1001 defines all the terms.

Section 1002 says that all consumer digital audio recorders must include SCMS -- which prevents second-generation copies of DAT tapes.

Section 1003 says that anyone manufacturing digital audio recording equipment or media, including audio CDRs, has to make "royalty" payments.

Section 1004 says how much the royalty payments are.

Section 1005 says that the royalty payments are to be deposited in an account controlled and managed by the U.S. Treasury.

Section 1006 specifies how the loot is to be divided up. It's basically a list of the sponsors of the bill.

(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica.
(38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.

Section 1007 specifies procedures for distributing the royalties. Anyone interesting in sharing the loot basically reports their record sales to the Librarian of Congress, and the loot is divided up proportionally. Thus, the RIAA, which controls the vast majority of record sales, gets nearly all of the money.

Section 1008 is what makes Napster legal. This is what the general public receives in exchange for all this money being taken by the government and spread around the recording industry:


SUBCHAPTER D. PROHIBITION ON CERTAIN INFRINGEMENT ACTIONS, REMEDIES, AND ARBITRATION

Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Section 1009 specifies awards for damages

Section 1010 provides for binding arbitration -- a provision that allows a company to obtain legal assurance that they are selling a legal product before bringing it to market.

So, in conclusion, you are right ... Napster is NOT fair use. Fair use does not even enter into Napster. Wholesale Non-commercial copying of musical works (only) is not a copyright violation, and has not been one since 1992. This is the point that the recording industry is trying to bury. But the fact remains, The RIAA has been collecting royalties on all blank digital audio recording devices and media since 1992, and has been (or is supposed to be) paying that money out to artists and writers. There is no need to wring our hands looking for a way to "pay artists." The "way" already exists, and the money is already being collected. The RIAA just doesn't want you to know that so that you will feel guilty and won't exercise the right that you are paying for, with real money, every time you buy an audio CDR.

Bottom line, if you want to find out what your rights are, don't expect the RIAA to help you find them out. Read the law instead.

Re:The problem with ranters (protest)

[jamused]

Unfortunately for Lars and Metallica, they want something ("artist control of their own music") that artists have never had, do not have under current copyright law, and for good public policy reasons ought never to have. Free-speech is a red herring--it's not the issue here; the right to free speech is completely distinct from the (fictional) right to be paid for your speech. Metallica has excercised their right to free speech by recording their music and having it published. Period, end of that story.

What's actually at issue is the real right (backed by copyright law) of the public, once having purchased Metallica's music, to do whatever they want with it, including making copies and sharing them with their friends. Free use of information, including things like recordings of Metallica performances, is legally recognized as the default state. As a matter of public policy in order to encourage the creation of artistic works, and not because of a "right" of an artist to be in permanent control of his work even after he's sold it, the law grants a limited, temporary monopoly on the commercial distribution of the artist's work--but that's the exception, not the rule--and the law makes it clear that the limited temporary monopoly does not override the underlying right of the consumer to use the work (including making copies for non-commercial purposes, excerpting for reviews, and all the other things that fall under "fair use").

The record companies have been doing everything in their power to convert that limited temporary monopoly into a permanent, unlimited one, and erase the fundamental distinction between information (which can be copied infinitely without making anyone poorer) and real property (which cannot).