Edison to Hillary Rosen - Parts 3, 4 and 5

An anonymous reader writes "MP3newswire.net has the follow up to the first two chapters of its series "Thomas Edison, Intellectual Property and the Recording Industry". These articles show that the controllers of the media bullied folk back then as they do now - and it didn't work. The last installments of the 5 part series include; Chapter 3 -- The Industry Evolves, Chapter 4 -- Copyright and the Grand Illusion, and closes with Chapter 5 -- Bringing the Past Into the Present"

Comments

If at first you don't succeed...

[curtlewis]

try, try again. It would seem the record industry gets that.

So they keep trying and keep leeching more and more off the fans of music. Less and less of the growing profits actually goes to the artists whose art is what is purchased while some fat excecutive skyrockets his cholesterol level in his exotic wood panelled office while having his knob polished by some babe banking brownie points.

I can make a longer sentence if I really put my mind to it. But... nah. That one paints the ugly picture of the current state of affairs well enough.

Enjoy while you can, parasitical record exec! The winds are changing. If the cholesterol level or some unspeakable STT doesn't get you first, maybe actually doing some REAL work once you can't make a living leeching off the creativity of others.

I suppose if you were a fan of record execs you could consider this a flame, but let's face it, are the descriptions above really THAT far from reality?

Author doesn't understand economics

[geekee]

The author of this piece spends a lot of time ranting about how copyright helps publishers, but doesn't do anything for artists. What he fails to understand is that by helping publishers, copyrights ARE helping artists. An artist is not necessarily a businessman, nor does he necessarily have any capital. Therefore, in order to make money on his work, he may need someone else to take a risk that his work is good and can be sold. Without copyright, the reward is negligible for the risk, and therefore, no one will invest in the author's work. That means only a few of the author's friends will read the work. In this case no one profits and the artist's work remains obscure. Everyone loses. Slashdot readers forget that although the artist creates the work, without someone taking a risk on it, the work may as well not have been created, as far as the public is concerned. That is the job of publishers and record labels. They take the risk, and therefore they deserve the reward. The artist gets whatever he is willing to agree to in order to let the publisher take the risk. He enters into this contract freely, and shouldn't complain he got screwed after the fact, if he's successful.

Re:Author doesn't understand economics

[Slyder]

I'd disagree. There have been many examples of how selling small amount directly is more profitable for an artist than selling large amounts through a publisher. Given a more reasonable (ie shorter IMHO) copyright limit, it could then spread to benefit others outside the smaller, more localized group sooner rather then later (assuming of course people find the [music/novel/etc] worth the hassle). Everyone wins. It's just not instant gratification.

Re:Author doesn't understand economics

[Jade E. 2]

An artist is not necessarily a businessman, nor does he necessarily have any capital

So, you're saying that "An artist is not necessarily a businessman" yet an artist needs to be an expert in contract law to ensure he's getting a good deal. Of course, he could just hire a lawyer to do it, except, oops, "nor does he necessarily have any capital".

The real problem isn't with the publishing system. It's necessary, as you pointed out. The problem, as I see it, is the fact that the majoriy of record labels seem to use contracts that can be broken down, in plain english, as 'You get x% of the profit, which is the total sales minus our costs, which we will calculate ourselves.' Then they calculate their 'costs' as 'total sales + $1'.

The problem is it's very hard to fix something like that in legislation. Unless you make some specific law dealing with accounting practices for "all contracts involving a percentage of an as-of-yet uncertain number" or something like that.

Or maybe a required basic course on 'everyday laws' in school. There are quite a few things that would be better if teens were exposed to a well-taught (yes that could be difficult in public schools) primer on contracts (read them carefully, require accountability), criminal law (what will happen if you're arrested), and generally what rights you are and are not granted by law, and probably more that I'm not thinking of.

And if it won't fit in the schedule, eliminate a PE course :D

Re:Author doesn't understand economics

[poptones]

Standard deal is 3 or 7 albums - right? That means you sign to a label and get a name; after three (or 7) releases (and providing there is no recoupment clause contracting you to more) then you're free as a bird. There's nothing at all to stop you from re-recording all those hits you once had and selling them yourself on your own label. The fact it's so rarely done (even in the case of Prince who, as I pointed out earlier has even stalled on this plan in spite of his hatred for his old label) is because there's not that much of a market for it. The reason those old recordings sold is because they were hammered into people's heads; far fewer people want to collect several versions of the same song by the same artist - they want to hear the hit version.

So, if you're an artist with a name and want to go it alone, you need to either develop a following for your live performances, or develop some new material. Many artists have made this leap and been very successful - many more are session musicians or used car dealers because they can't come up with something new and marketable outside the machine. This is why I have no remorse about losing the machine; we need neither it nor the vapid "artists" it creates.

Notice that Pearl Jam is leaving their label? Add another one to the roster of acts that are wising up and leaving the machine to rust to a heap.

Buggy Whips...

[Dinosaur Neil]

"Progress, far from consisting on change, depends on retentiveness.... Those who cannot remember the past are condemmed to repeat it." George Santayana, The Life of Reason

"A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidible outcry in defence of custom." Thomas Paine, Common Sense

...and finally;

"Mass movements can rise and spread without belief in a God, but never without belief in a devil." Eric Hoffler, The True Believer

I realize I'm gonna be stating the obvious here on a number of points, but I'm building to something... Even as recently a ten years ago, stamping out a new CD of new music took large chunks of money. Large enough that only Big Names were worth the investment (though there was a thriving community of Not So Big Names and even Very Small Names survivng by producing cassette tapes). Now, a "professional" quality recording studio and CD burning setup costs less than a new car and anyone can record and sell CDs, and thanks to the web, these people can get attention without repetitive and redundant radio saturation or MTV airplay. Extrordinairily talented people who don't fit the recording industry's concept of Things They Can Sell now have a way to get their stuff out; maybe they won't sell a million CDs, but they might actually see some money for what they do sell (or, failing that, they may get a chance to do what they enjoy without someone in a suit telling them about "target demographics"). On some level, the recording industry realizes that they are selling buggy whips to an increasingly motorized society and they're starting to panic. The "devil" they point to is the "pirates" (who, according to the first chapter of this series, have been with us for over a century). The same pattern is showing up in movies; remember the shockwaves from Clerks and The Blair Witch Project? Low budgets, big returns, who knew?

So we know that "piracy" is not nearly the issue that the RIAA has made it out to be. We know that copyright laws are seriously gronked (though the intriguing points raised by Mr. Ziemann in chapter 4 about why had not occurred to me). We know that the lawmakers are either ignorant of the damage they're doing, or unconcerned (nothing like a few thousand bucks to soothe one's aching conscience). We know these things because we choose to investigate (even if it's only reading YRO posts on /.). But what about the millions of people who don't read slashdot and/or have never given the matter any thought? How can they be reached?

For myself, I try to spread the proverbial word. I've hooked my little sister on a number of indy bands and I'm working on my nephew. I expose my friends and classmates to college radio and small label bands. I buy my music, for the most part, directly from small labels or places like CDbaby. I'm always experimenting and encouraging others to do so. I try to inform people I know about the damage being done by the DMCA without sermonizing (well, I try anyway). Is it doing any good? I dunno. Probably not much. But maybe it's enough; a couple lines after the above quote, Thomas Paine also said, "Time makes more converts than reason."

Philosophy

[Esion Modnar]

people had fewer mediums to through which to be bullied

Consider this: do the Amish care about the RIAA?

Our possessions and desires imprison us as much as we will let them.

You can trap a monkey very easily with a jar and some peanuts...

So, RIAA can influence us as long as our desire to possess and experience recorded sounds outweighs our desire to strip them of their powers.

Re:Philosophy

[pantropik]

The RIAA was made to serve the public, not drive us to Amishism...shudder.

Made to serve the public? Where the heck did you get that idea?

Misinformed

[poptones]

Everything you know about the music business is wrong... AOL gives its 30-hour employees better benefits than Warner Music gives Don Henley. Because Don doesn't own his songs, either.

There are lots of little inaccuracies in this "article" that, together, make it classify only, at best, as "a fairly well constructed rant." The above is only one of these inaccuracies.

"The song" is not simply the words and notes. It's highly unlikely Don's old labels could prevent him from releasing live recordings of his greatest hits under any label he now chose - including just giving the damn things away over the internet, if that were what he wanted to do.

What the old labels own are the recordings they contracted him to perform. This is the deal most artists have, in fact. When Avril Lavigne signed away her rights to "Complicated" it's highly unlikely she signed away all rights to the song; what she signed to the label was the recordings the labels paid for in the contract. There may be a barrier to her recording those songs for any other label for a period of X months, but that does NOT mean the label "owns the songs." Songwriters own "the words" and or "the music." Artists own whatever performance rights their contract allows them to keep; labels own their recordings. That's it.

For a fantastic example of this follow the recordings of "Ol' Blue Eyes." Sinatra was with Capitol for a large part of his career (The Capitol records tower in Hollywood was draped in black when he died.), but with every comeback he would renegotiate his deal; if that meant moving to a new label, he was always ready to do so (and did, several times). And each time he moved he'd re-record all those "classics" (most of which were written by someone else) for the new label, taking his (now greatly improved) cut of the sales.

For another example look at Prince (or whatever he calls himself now). He vowed long ago to re-record his entire catalog for his NPG label; last I looked he was too busy with new stuff, but he has, in fact, re-recorded many of them. And there's little anyone can do to stop him. They are, after all, his songs.

Getting Tired of All This

[reallocate]

I continue to be amazed that people seem to be surprised and offended that other people do everything within their power to profit from their work and their creations. It was as natural for Edison to try to control the market in products he made possible as it is for someone who punches a time clock to try to control the only thing he can sell: his labor.

Get over it. No one is going to change the world or human nature just so a few people can get free music.

Re:Getting Tired of All This

[Nutcase]

greed and violence is not human nature. there is no such thing as "human nature" - there is just nature. nature, and by extension human nature, is all about joint survival of the species. Every species but us works in some system to make sure their species survives long term.

our culture has somehow moved away from that, and now things that everything is to be taken from other members of our species for ourselves. essentially, greed makes us value our own interests over that of our community and by extention species.

this has not always been the case. it is just escalating, because it has grown to be accepted wisdom. Since the industrial revolution, people simply assume that the end goal should be to make themselves as wealthy as possible, and that the best way to do that is at the cost of others. This has led to the evolution of advertising, and other cultural norms which essentially exist for the sole purpose of making people want what they dont need... in other words, more than they would if left alone.

So basically, greed is a social construct, not some "human nature". Saying it is human nature, and not some radical abnormailty is essentially making excuses. Basically, people say that these things are just human nature. They do this mainly so that they dont have to look at themselves in the mirror and stop doing the things that deep down they know are wrong.

Nature is all about teamwork and preserving a species. We have effectively removed ourselves from nature. In doing so, we are killing ourselves. We are also killing nature in the process by destroying it's cycles. Thing is.. we need nature. Nature, long term, doesn't need us. If I had to bet, I suspect we are going to lose.

Hopefully, as more people realize this, people will stand up and be willing to risk being one of the first to change the way they live, and look for a culture that works according to nature's laws. And once that culture kicks in and becomes self sustaining, our current greedy consumptionist culture will find itself with a new competitor which it simply is not equipped to compete with. It will become less and less as the obvious correctness of working with nature appeals to more and more people who see it working and lose their fear of change. And one day, corporate and personal excessive greed will seem to be nothing but a silly foot note in our history, and a warning of where we can go wrong. And that will be a pretty good day.

In any case, much of this post was brought to you by the concepts in Ishmael by Daniel Quinn. Read it. It's worth the time.

Re:this Author doesn't understand music

[xutopia]

The musicians and boyz band you see are not artists. They are businesspeople.

The real artists don't care if they don't make millions off of what they really love. They care if they can make a living off of it that is all.

Re:hmmm

[jon787]

That is true, but the US isn't completely a free-market economy. Just look at all the anti-trust laws there are.

pattern?

[sniggly]

Isn't it the medium? Media companies could charge for content because the content had to be sold on a carrier medium, clay tablets, paper, vinyl, plastic.. The internet changes all that. The internet will cause content-creator and end user to contract directly and the middle men will be out of luck. DRM won't ever work because total control is a political illusion with no real footing in reality.

It's not just MS and Oracle that have to be afraid of the `commoditization' that linux/mysql/open source cause. Everything moves towards it.

Back to the days of greek theater....

Human Nature

[poptones]

How poetic. Bjork said something great once about poets and truth, which I will leave you to research on your own.

I dunno where you get "since the industrial revolution." Didn't you read about Lords and serfs? About slaves? As I recall these practices predate the industrial revolution by several Millenia. Or is it your argument that slavery and ruthless exploitation aren't based on greed?

Correction.

[MickLinux]

I take it you find Amishism to be an extreme version of Christianity. I, on the other hand, would find it too me a self-consistent version of Christianity.

In light of that, I'd like to correct your statement.

You think the RIAA was made to serve the public.

The RIAA thinks that the RIAA was made to serve the Recording Industry.

But maybe God thinks that the RIAA was made to bring you full circle and hopefully drive you back to something very like Amishism.

I, for one, respect the Amish, and wish that my life was a ton more like theirs. But I am not they, so I attempt [much less successfully, I suspect] in my own place, self-consistent Christianity.

The Amish really have a major section of their lives figured out, which I and most others do not.

How things work

[poptones]

Labels don't own the song - they own the recording they contracted. The artist is free to record the song again (once the exclusive contract with their label is up) and free to perform the song - this is how they make their money. The record deal is like signing with an ad agency; you hope you have something they'll want to sell, and if they do you sing a record deal and get to live like a rock star while driving yourself deeply in debt on the hopes you'll sell enough units to recoup. The record company puts up the money, but the only "songs" they own are the recordings the artist makes under contract.

Think about this: ever noticed how those talentless pop bands always play with a recording? Who do you think owns the recording? When they play on TV, whose recording is that backing them up?

It's the hit version which is owned by the label.

Now, the artists can go out on their own and perform live if they choose - but what do they do when they suck and the label won't let them have their "live" backup recording? Or what happens when a fan at a "live" show asks to jack into the mic board? The artist has the right to perform live, and the artist controls their work not signed to the label - but suddenly the issue of recording a live show isn't just up to the artist because the label still owns "the music" (the backup recording) being played in this "live" venue.

This is how so many "artists" get trapped by labels: even if they have talent and can perform onstage, the audience wants to hear the hyped up version from the radio - they just go to the shows to see the shaved monkies dance and wiggle onstage. Strip away the Hollywood glamour and they're suddenly forced to cater to a very different audience - one to which a great many "stars" cannot relate, because they have absolutely nothing to offer that audience.

Things have changed too much

[Bruha]

At one point the author stated that the same scenario is taking place where the RIAA has the monopoly but here's the difference today.

Today you have full blown capitalism in it's worst form. You need credit for anything so this is the limiting factor the independents would have to challenge to take on the RIAA and break their Trust (There's really no monopoly here so I'll go with Trust)

They dont control distribution, media (Cd's), players, or locations to play the music. At least not yet so that's one difference here.

An independent can come along and they did back in 98-2000 area via mp3.com which used to be a great site when it was just no name indie bands that were there. Then they sold out and now there's tons of RIAA backed bands there selling music.

When MP3.com tried to copy all the music in the world and stream it to users the RIAA jumped on them. Before that time there were a handful of name brand bands located there but shortly after you couldnt go to any genre and see one of the indie bands pop up in the top 20 they had all been replaced by the big bands.

The limiting capital factor here hurts the independent from breaking the Trust. At this point in time you need money to produce, money to advertise, and you need clout to get your product in the shelves of any store such as walmart. While it'd might be possible to distribute via independent music stores getting the word out is more important.

Factors that would help the independents -

Cheap internet access to distribute from. Lets get real here bandwidth is there, we've got miles of dark fiber and frankly as a network engineer costs have come down from the copper line days. The T1 needs to cease to be the cash cow it's been for the telco's the last 20 years. Let the T3+ become the cash cows and let the consumer have multimegabit access up and downstream.

If it was cheap for them to advertise on the internet and then distribute their music then they could easily get the word out and do the sales themselves. It's far cheaper to do a bulk mailing job with a bunch of machines burning cd's and also doing online paid music downloads than doing all the hard work it takes to get into one store.

It's no coincidence that the RIAA's outlash against Napster and the subsequent loss of full speed uploads via cable/dsl (Most are now limited at 128k) so people just cannot have a home webserver running where they can share their creations witht he world. Once again I have to point to the T1 cash cow. Server hosting is prohibitive in the sense it costs to pay for all the bandwidth you'd pump out before you get a return in sales. Of course your band has to be loved to make sales so then it comes down to a gamble there.

And it's that gamble that creditors will not be likely to loan musicans money especially if they're not known world wide.

Now as the internet continues to socialize the world things may change but it's not going to happen over night.

Understand "exclusive."

[poptones]

12.9.98 Take the Noise (from NME.com web site) PUBLIC ENEMY, who had been putting up tracks from their forthcoming remix album 'Bring the Noise 2000' in MP-3 format files on their web site, have been forced to remove them by their record company.

Duuuuuhhh... When you sign a contract giving a label exclusive rights to your work, no (duh), you can't just go out on your own while still under contract. This is the main obstacle PE faced and you cannot blame the corruption of the record industry for that. If you work for a company the chances are you also signed a similar agreement when you became gainfully employed there - one granting to your employer full "rights" to any "inventions" you might make while under contract. Such exclusive license is not in any way limited to the "corrupt" music industry. In this case they were "giving away" tracks that had already been promised to their publisher - that means their publisher had exclusive license to distribute those works. It doesn't mean they had license to everything the band ever does, but it does mean they controlled those works - no one forced Chuck D to sign on that dotted line.

So far as selling recordings long after a musician dies - well, yeah. It's too bad how many musicians have been treated, but that has nothing to do with the fact the recordings are still owned by the labels. What if you play a part in a film? Should that film become your property after X years? How do you decide who it should belong to? The Director? The Executive Producer? The leading man? the leading lady?

Music is the same. A recording is not one guy sitting alone in his garage singing into a tape recorder - and when it is guess what? Those guys don't need the majors in order to survive the long haul. In most every other case a recording is the product of dozens of people (including several musicians), none of whom would be in that place at that time without the machine.

If an artist, in today's market, isn't smart enough to know all that machine represents - and, in many cases, their ultimate goal is to become part of that machine - then it is not my right (or yours) to tell them otherwise.

So far as DRM locking away works forever - well, that's fucking absurd. Those recordings (an their right to license them) are the only assets publishers have - they are not going to let them wither away. Even when they've been locked away for twenty years they are still an asset because no one knows where trends and fads will go and they always represent a potentially licensable product. DVDs use DRM and I have heard no one bitching about "we're gonna lose The Matrix in 100 years because all existing copies are locked away in DRM!" In fact, every film and audio recording stands a better chance in the long run because the publishers release damn near everything, no matter how badly they expect it to do.

Publishers keep master recordings so long as they can because that is the bread and butter of their business. And when a publisher goes out of business those recordings do not magically disappear - they are moved to vaults of the new company, because those are also the new company's bread and butter. There have been a few rare cases where historical recordings were transcribed from shellac or wax because those are the only recordings that exist, but when talking about the contemporary music and film industry such a notion is fairly absurd. Derivative rights are far too valuable nowdays to be treated so carelessly; if anything, today's market ensures works will get better care than in the past, because there's always the chance of releasing a mega-DVD of a film or TV show or a "lost sessions" recording of a now dead artist. In such a market DRM i