David Lowery On the Ethics of Music Piracy

New submitter Mystakaphoros writes "Musician David Lowery (of Cracker fame) takes NPR intern Emily White to task for her stance on paying for (or failing to pay for) music. Quoting: 'By allowing the artist to treat his/her work as actual property, the artist can decide how to monetize his or her work. This system has worked very well for fans and artists. Now we are being asked to undo this not because we think this is a bad or unfair way to compensate artists but simply because it is technologically possible for corporations or individuals to exploit artists work without their permission on a massive scale and globally. We are being asked to continue to let these companies violate the law without being punished or prosecuted. We are being asked to change our morality and principals to match what I think are immoral and unethical business models.'"

Comments

for artists?

[dmbasso]

This system has worked very well for fans and artists.

No, it's been superb for the middleman, the famous MAFIAA.

Re:for artists?

[gl4ss]

well, that's where artists want to end up on their old days. of course very few of them can become MAFIAA execs.

and well.. being asked to conform to technical realities? OMG CALL OBAMA!!!!!!!

wtf do they want, bend the rules of physics so that it would be expensive to copy bits?

Re:for artists?

[mcgrew]

What I took exception to was "'By allowing the artist to treat his/her work as actual property, the artist can decide how to monetize his or her work".

But your work is NOT your property, at least not according to the US Constitution (haven't rtfa so I don't know if it applies to this fellow). I never heard the term "intellectual property" until they passed the Bono Act (which should have never been passed; copyright was already too long).

Plus, under US copyright law, phonoecords are "works for hire", meaning the label holds the copyright. The artist doesn't hold the copyright unless he's self-published.

Yours is good, too -- it has neither worked for the fans, nor the artists. But you are correct, it has indeed worked for the MAFIAA.

Re:for artists?

[mcgrew]

The whole purpose of copyright is to make sure artists get paid for their labor.

In your country maybe, but in the US our constitution says "for the promotion of the useful arts and sciences". Writing a book doesn't guarantee it will be published, and getting published doesn't gurantee it will sell. With that in mind, and considering that most songs, movies, and books are financial flops, from your perspective copyright must have failed miserably, because most do NOT get paid for their work. Only the good stuff earns any cash. Well, usually only the good stuff, sometimes crap is successful.

Re:for artists?

[gorzek]

This is incorrect. The NET (No Electronic Theft) Act, signed by President Clinton, criminalized copyright infringement even when there is no profit motive on the part of the infringer.

Re:for artists?

[cpu6502]

>>>The only moral exception to this is for survival.

The other moral exception is the 100+ year copyright. Before the invention of copyright culture was a shared commodity. Artists created and the people enjoyed. Copyright was invented as a way for the artist to recoup his labor with money, but nobody should be paid 100 years after they create something (or after they are dead).

10 years should be enough for the artist to earn money from sales to repay his labor. Anything beyond that? He should make new music, statues, books, whatever instead of sitting on his laurels. The rest of us don't get to collect money for work performed 20, 30, 100 years earlier.

Re:for artists?

[bws111]

Bullshit. The whole purpose of copyright is to encourage creation of new works. The method of encouraging creation is giving people control over their works.

Not the stupid 'get paid wages' argument again! Here is a clue for you: the ONLY reason you get paid a wage is because someone else expects to make more off of your work than they paid you to do the work. The only reason that person expects to be paid more than they pay you is because they intend to sell or use your product in a money-making operation. Now, if you eliminate (or substantially reduce) the ability for someone to sell your work, do you really think they are going to continue to pay you?

Re:for artists?

[hairyfeet]

Bimbo Newton Crosby. Know how much Cheap Trick gets from iTunes for their back catalog? That would be ZERO, the middlemen take every cent. Or how about the fact that Meatloaf had to file for bankruptcy TWICE because using Hollywood Accounting the record company claimed that Bat Out Of Hell I, which has the record for longest time on the top 200 BTW, and this before the age of piracy, made NO MONEY and therefor he didn't deserve shit for one of the biggest selling albums in history.

As someone who makes music and hopes to actually make a living from it I have to say FUCK THE MAFIAA as the current system is so damned rigged for the middlemen it is about like trying to win 3 card monty, its a total scam. living a hop, skip, and a jump from two major music centers I've held the actual contracts in my hand, got to see what actually happens. i've seen artists that sell more than half a million copies of an album they 1.-recorded on their own time with their own money and 2.-promoted themselves with no help from the record co get handed a BILL for $50,000 for the "privilege" of giving them a half a million in sales! I've seen bands have to break up and never work together because the "standard deals" for new artists are so damned skewed that unless they sell Britney numbers right out the gate they LOSE MONEY and they LOSE THEIR SONGS whether they sell Britney numbers or not!

So Cracker, who last i heard was working as a producer and thus being a middleman himself, can frankly kiss my ass. The system DOES NOT WORK for anybody but the leeches, PERIOD. As a final note, know what Metallica gets for all their MAFIAA ass kissing? 89c an album. That's it. they practically blew the record execs and the greedy fucks won't even give them a whole dollar. Fuck the MAFIAA and the quicker they DIAF the better, it'll be a better world without them

Re:for artists?

[Skarecrow77]

A. I don't think that's what GP was saying,
and
B... risking the ire of the single-minded legion of modders in this thread:

why the fuck does digital distribution need to run on scarcity economics? It's not scarce, so it's not valuable? Why, just because it's trivial to copy music digitally, is digital music now considered to have little-to-no value?

If you're asking why -artifical scarcity- needs to be implimented in this scenario, I would guess that you already know the answer to that, but just for the sake of arguement, it is because of the tragedy of the commons. None of us wants to pay for music when it is freely available. I know I don't. But all of us not paying for music has long term devastating impact on the production of music as it currently exists.

And of course all attempts at artifical scarcity are failing... and not necessarily because they're wrong.

The music industry will change. That's a given. It's probably unavoidable at this point. The question that the author of TFA is posing isn't a "what can I do to legislate people away from doing what they're doing" but "how can I properly explain to people what they, not the RIAA, are doing to the music and musicians they say they love". He is pointing out that changing the way that music is created and that society treats artists is the tyranny of the majority. We are forcing these changes not because it's "the right thing to do" but simply because it's in our own intrest, and we vastly outnumber them.

Re:for artists?

[HornWumpus]

But all of us not paying for music has long term devastating impact on the production of music as it currently exists.

We can only hope. A world without Beebers is a dream.

Why do musicians think the last 80 years is the norm? The world is returning to the norm. They will get paid by audiences for live performances. Instead of a very few getting paid mega bucks, many will make a living. Sucks to be a 'studio band' (e.g. Guns and Roses) that can't play live.

Re:for artists?

[Digicaf]

Kind of, but not really. It takes time to build a house just like it takes time to make art. Just because it costs very little to copy the final product does not automatically mean that there wasn't some investment of time and effort on the front end. Copyright law seeks to recognize that original time and effort.

Most of the pro-copying arguments I've seen involve this logic: "It costs me almost nothing to copy this thing, therefore it has no value and the creating artist deserves nothing for it". I've seen it dressed up a lot of different ways but it usually boils down to that, and it's a logical fallacy. If it were true, then people wouldn't recognize a difference between listening to static, and listening to music.

Whether or not intellectual property has value can be argued all day long, but that's not at issue here. What is at issue is whether or not an implementation of an idea has value. Most people confuse those two things, simply because the music they interact with is so easily manipulated. We must be very careful to recognize the difference between a thought, and something created from that thought. Creation has value, the only question is how much value, and how to recognize it.

Re:for artists?

[Grishnakh]

Ok, and how exactly do you know that filesharing is "wrong"? Slavery is a bit of a red herring, because no one asked the slaves what their opinion on the issue was. Files aren't people, so they don't get a vote; slaves are people, so even though they didn't get a vote back then, they should have.

Things are "wrong" because the majority of people think they're "wrong". Then they make a law to restrict it, so they can restrict the activities of other people, with the goal being to create social harmony and keep the majority of people happy. Stealing cars is illegal, because in a society where cars are necessary for transportation, it would be a giant hardship to find your $30k car missing when you need to go to work in the morning, and now you need another one and don't have another $30k lying around to buy it; most people agree this this is a problem, so they agree to ban the theft of cars. In practice, car theft is a small problem, very few people do it, and if you were to put the issue up for a vote, very few people would actually vote to legalize it, because they don't want their car stolen either.

Now of course, if you're a religious conservative, you'll probably try to say that morality is absolute, but that's mostly bunk. There's nothing in the 10 Commandments about file sharing, though there is something in there about theft, but then again, that can equally apply to slaves, so that's really quite useless since it doesn't specify exactly what can and can't be considered "property". If you went back to those days and tried to tell people that ideas were property, they'd think you were nuts. So unless you can get God himself to come down and settle the issue for us, then we're stuck with popular morality whether you like it or not.

We tried banning alcohol here in the US about 100 years ago. It was a complete disaster. That's a good illustration of what happens when you try to ban something that most citizens want to do, and are going to do despite any laws to the contrary. Ergo, laws must be made based on popular whims: if most people don't want it to be illegal, then it shouldn't be. Otherwise, what you have is not a democracy at all, but a totalitarian police state (it'll be a despotism to keep something illegal that people want to do, and it'll have to turn into a police state to keep fighting the will of the people).

Re:for artists?

[next_ghost]

I think you're arguing this from the wrong point of view. There are many valid arguements on this side of the issue, but "it's easy to do so it shouldn't be wrong" is not one of them.

I think that the only argument that's really needed is this: "No matter how hard you try to legislate water to flow uphill, it just won't happen."

That said, TFA is utter BS. I support my country's Pirate Party. I did a lot of work a few years ago in open translation of Free Culture into Czech. And I say screw the corporations. My only concern is about culture. If you can make a living from your art, well, that's nice, good for you. But I won't give a damn if you can't. Content doesn't become culture by someone making money from it. The entertainment industry is not our culture no matter how much they try to make it look that way. They just happen to be the biggest contributor to our culture at the moment.

Content becomes culture when it's being shared. Think about it: Romeo and Juliet, Hamlet, Frankenstein, Dune, Star Wars, Star Trek, Moby Dick, Disney cartoons etc., all of that is part of our culture. Why? Because people know what those stories are all about. But there's also a bajillion obscure books and movies that are not part of our culture because nobody has ever heard of them. That's why locking down content is wrong. I don't care why you're trying to lock down content, whether it's for money, political ends or whatever, it's wrong because it harms culture. If the lockdown is successful, then what's important part of our culture now may be lost forever just some 10, 20 years from now. I don't mind paying for content but at the same time I won't jump through burning hoops just for the privilege of paying somebody. The author has the right to get a fair share of profit from whoever makes money using his content and not to publish the content in the first place if he chooses so. But nobody has the right to lock down published content. Not the author, not anybody else.

Re:for artists?

[next_ghost]

as I pointed out before, you cant' make something legal just because lots of people want to do it, because people do what's best for themselves in the short term, not what's best for themselves in the long term or society in general. It's the tragedy of the commons.

you can, and certainly should, reconsider if something should be legal in the face of overwhelming popular support of it being legal. you can reconsider if the benefit in keeping it illegal is disportionate to the harm in legalizing it.

You're turning the issue of legality upside down. Things should only be illegal when they cause serious harm to the entire society AND making them illegal won't cause even worse problems. So what's the harm from unauthorized file sharing? Well, in the worst case, some people may not get a return on their investment. Big deal, like that doesn't happen to millions of people in other professions every day. And what's worse, it happens to lots of artists anyway, regardless of copyright.

and to answer your question, I -don't- know whether file sharing of music should be illegal.

If you don't know a very good reason why something should be illegal, then you already know one very good reason why it shouldn't.

Re:for artists?

[meta-monkey]

You're right about how the photography industry has changed. That doesn't quite work for recording artists, though. The difference is that wedding photographers are making a custom product that only has value to the client. No one else (except maybe your mom) wants your wedding photos. And they're not working on spec, either. They're commissioned directly by the end user to create a one-of-a-kind work that only has value to the client. Musicians, though, are working on spec. They or the record company are putting up tens of thousands to record a song hoping they can sell copies of it for a buck apiece to the public. So the wedding photographer model won't work for recording artists.

Only in the copyrighted industries do we have the concept that a person can work once, then get paid for it over and over without ever lifting a finger again. That idea made sense in old times because reproducing and distributing a work required much effort than lifting a finger. But now that it requires less effort than that, the law needs to change to reflect that economic reality.

The problem really with the disconnect between the artists/industry and the consumer is the industry has forgotten that they don't have any fundamental, natural rights. They have protections granted by lawbut they don't have fundamental "intellectual property rights" the way we have inalienable human rights that the Constitution says government may not restrict (except in certain specific cases and only with due process).

I have a right to free speech. If a musician sings me a song he wrote...I have a right to turn around and sing that same song to somebody else. I have a right to my personal property, to use it how I see fit (unless it hurts blah blah blah). So I have this copy machine right here called a "computer"...I have the right to use it to copy a song or a photograph or a movie or whatever. But nobody has a fundamental right to not have their stuff copied.

This is a bit of a problem, because as you said, the hard part is creating a new song or thinking up a new invention, and society really likes having those things. So to encourage artists and inventors to create and share, we as a society will agree to curtail our right to use our copy machines (whether they be computers, printing presses, or our own voices) for a limited time. We'll do them that favor, giving up our fundamental rights to free speech and the use of our physical property to help them make a buck. But only for a limited time...say 14 or 28 years.

And that worked for a long, long time, until they forgot what the agreement was. Now the industry thinks they're the ones with the rights! They think that just because they strung 3 chords together and said "baby" a lot that they have the inalienable right to dictate who can and cannot repeat those sounds and for what purposes for about 120 years. And will bankrupt us through the courts if we defy them. And then they want to lecture us as if they have the moral high ground!

And that's why there's conflict between the artists and industry and the public. The artists and industry forgot they don't actually have any fundamental rights and are compensated only because of the good will of the public. But they've squandered that good will and are killing the goose that laid their golden eggs.

Once again, somebody misses the point

[Anonymous Coward]

Look: the world changed, and we now have computers and the Internet. They are the single greatest boon to productivity, creativity, knowledge and freedom in the past hundred years. The Internet relies, fundamentally, on its ability to make exact copies of data, nearly instantly, and nearly for free.

We have a choice between strong intellectual property protection and a functioning Internet. We cannot have both, as they are in direct conflict with each other.

Anybody making arguments for the ethics or piracy, or the benefits of intellectual property, is yelling at clouds. It doesn't matter if piracy is unethical. It doesn't matter if it hurts artists. It doesn't matter if it hurts the economy. The Internet is much more important.

here we go again

[hype7]

the quintessential disrupted producer, complaining about how the world is not conforming to the way they want it to be, or worse yet, the way the world "should" be.

I'm sure the exact same essay was written somewhere upon the development of the phonograph. "but how will we get paid if they can play back our music a thousand times once it has been recorded?" probably the same argument, too, by playhouse actors when recording movies came along.

the artists/actors might not like it, but the development of technology drives down the price, massively opens the market up, and, if they're smart, allows them to make more money than their predecessors could ever have dreamed of.

writing letters complaining about how people are not paying enough to you is just so 1842.

Re:False assumptions from gatekeepers

[Hatta]

You're free to make a copy of it and live in that one.

Lowery: tell it to the young, poor Jimi Hendrix

[ffflala]

I'd like Lowery to go back in time and explain his you-must-pay-to-hear approach to one young, incredibly poor Jimi Hendrix. That guy started out playing a broom for fuck's sake; his first guitar had one goddamn string. Where would we all be now if Jimi's access to music should have been limited to the amount he could pay?

Lowery's approach would be accurate, if he were talking about selling appliances, or even band merchandise. Without further addressing the multiple mistaken premises (replace every instance of "the vast majority" with "a tiny minority", for starters), the main area he fails is his equivocation of music with a physical product.

We've become used to this model. It has driven pop music culture for close to a century; it's given us the "music star" celebrity model that we've become comfortable with. This approach has progressed naturally, and now we've reached the current point of American Idol-voted celebrity products.

What he overlooks is the natural power of music. Music, when at its best, can give courage to the otherwise cowardly, joy to those in pain, even trigger mystical experiences in the otherwise mundane. It can cement memories and bring people closer together.

The problem is when you slap a price tag and marketing on something that serves as a vehicle for these transformative experiences, a few nasty things happen. For one thing, you inevitably see a homogenization of music as salespersons try to maximize profit. Music is reduced to the lowest common denominator to maximize mass appeal, just like fast food. Services exist that compare proposed compositions to past hits in terms of melodic, harmonic, rhythmic structure -- you have people just rewriting variations on the same old tune. Quality is subjective though, and there's no real basis to say one song is better than another -- all that matters is the experience of the listener.

But the most insidious part of slapping price tags on transformative experiences is that you keep poor people from experiencing them. Can't afford to pay up? Tough shit son, you don't get to experience an essential aspect of your culture. Too poor? Sorry, this joy is reserved for those who can afford it.

I'm sure Lowery means well, but people like him are one reason why I'm a librarian. There must be a way for people to access vital, possibly transformative parts of our culture regardless of ability to pay. For the time being it seems like taxing society to provide public access to repositories of music, art, and literature, while not perfect, is the best workaround.

Re:lame

[Skarecrow77]

He's actually the founder of an indie rock band and a college professor.

He's using math and real-world industry-specific experience to attempt to find real world solutions to complex arguements. He makes several valid points about the network of websites, software, and hardware surrounding the music-should-be-free and copying-is-not-a-crime debates, arguements that are difficult to find a valid rebuttal to. I know because I'm trying to do so.

Perhaps you should read more than the first few paragraphs. You may not agree with him, but he knows what he's talking about.