The price of audio CD-Rs has pretty much fallen through the floor.
Originally, the price for audio CDRs was much, much higher -- in the $13-$14 range PER DISC.
There is no real reason for this, as the "RIAA Tax" is only 2% of the CD wholesale price, and the cost of producing an audio CDR is no more then the cost of producing a data CDR. Apparently, the CDR manufacturers have "broken rank" with the RIAA's agenda of discouraging home recording through high priced media. A quick web search now turns up blank audio-only CDRs for $1.13 each.
But yes, the record companies do get a cut when you buy an audio CD. For that $1.13 CD, the RIAA receives between two and three cents, whether you use that CDR to copy a Metallica CD, or record your own band in your garage.
You make an excellent point that I had never even considered. The RIAA's interpretation -- that Section 1008 only protects copying done with Section 1001 equipment and media -- is obviously an incorrect interpretation, because Section 1008 covers both digital and analog equipment and media, while the rest of the act makes it clear that only digital equipment and media are covered by SCMS and subject to royalties. If it was Congress' intent that only activity using AHRA-restricted devices and media were protected by Section 1008, then why does Section 1008 protect activities using analog equipment and media, when there are no "covered" analog recorders or media?
You ask a good question though. Why is it good public policy to allow all non-commercial copying, instead of just non-commercial copying onto "covered" devices?
In general, it is bad public policy to collect taxes or royalties on a product or activity, and at the same time declare that activity to be illegal. It would be one thing if the Congressional purpose of this law were to impede non-commercial copying, as, for instance, a punitive tax levied on illegal drugs is designed to discourage the drug trade by allowing the IRS to go after convicted drug traffickers for "tax evasion", but that was clearly not what Congress was trying to do. Congress was not trying to discourage or impede consumer use of digital audio hardware and media. On the contrary, the AHRA was promoted both by Congress and the RIAA as "enabling legislation" that would break the legal gridlock, and bring digital technology to the masses.
I believe that Congress created a flat exemption for all non-commercial copying in order to avoid the problem of "tainted" copies.
For instance, if the RIAA interpretation were correct, here would be some of the consequences:
1) You buy an audio DAT, pay the royalty, and copy a phonograph record into the DAT. This would be legal.
2) You take the DAT you just made in step 1, and upload it onto a computer. You then use a digital audio processing tool to remove the surface rumble and needle clicks and pops. You record the cleaned-up results on a second audio DAT, on which you have also paid royalties.
Now, is (2) a legal or an illegal activity? When you uploaded the copyrighted work to your computer, you transferred it from a "covered" device to a non-covered device. Under the RIAA's interpretation, the copy on your computer would now be an illegal copy.
How about the resulting, cleaned-up DAT. Is that legal or illegal? Under the RIAA's interpretation, it was made from an "illegal" copy, so that would presumably make it illegal.
Back to the issue at hand -- Napster.
3) You borrow a CD from your sister, and use an AHRA-covered, SCMS compliant CD player and AHRA-covered, SCMS compliant standalong CD recorder to make a CDR copy of that CD, on an audio CDR on which you have paid the royalty.
If anything, (4) is CLEARLY covered and protected by Section 1008. Even the RIAA seems to agree on that.
4) You purchase a blank Audio CDR, paying the industry royalty. You now go onto Napster, and download 74 minutes of music, which you use to fill that CDR.
Is this legal? You have done, in essence, exactly what Congress authorized. You have purchased a piece of digital audio media, paid a royalty on that media, and filled it with copyrighted music.
Under the RIAA's interpretation, the reason why (3) is covered, but (4) is not, is that in (4), the use of Napster -- a non-AHRA covered technology, is considered illegal by the RIAA, and, therefore, the CDR you made is illegal, even though you paid a royalty on it!
If this doctrine were to be accepted into law, then it would be impossible to determine whether any given digital audio recording was legally or illegally acquired. This would be bad public policy. Hence, the blanket exemption on all non-commercial copying. The public benefit is that there is no such thing as a "tainted" copy.
As for your comment about "your days as a software development are numbered", I remind you that the royalty provisions and resulting public exemption on copyright infringement only applies to audio recordings. Title 17 Chapter 10 ONLY applies to musical copyrighted works, not to computer programs, and not to audiovisual works, like DVDs.
As for the third argument, I see no cause-and-effect relationship between the two. After all, the MPAA designed and implemented CSS at a time when copying of DVDs was impossible.
The court ruled that the computer, hard drive, and rio are not digital audio recorders, for purposes of establishing a requirement to implement SCMS and pay an industry royalty.
This is really important. If the RIAA had convinced the court that personal computers are really "digital audio recorders", then the RIAA would receive a 2% royalty on all computers. The court said, in effect, "no way".
The Napster case is completely different. It is not about establishing a royalty/SCMS requirement. It is about whether section 1008, a different section, creates immunity for all non-commercial copying, or just for AHRA-restricted devices.
The appeals court firmly laid down the law. "No," they in effect told the lower court and the RIAA, "your theory is wrong. Section 1008 immunizes ALL non-commercial copying. The law says so, and the congressional record says that that's what Congress intended."
I'm betting on the district court to find in favor of the RIAA, the appeals court to reverse and find in favor of Napster, and who knows what the Supreme Court will do.
The core of Napster's defense is, as the RIAA correctly points out, section 1008 of the AHRA.
From the brief:
The AHRA balances the interests of manufacturers, consumers, and copyright owners by plac[ing] restrictions only upon a specific type of recording device, specifically defined in the statute, requiring such devices to be equipped with copy protections and that royalty payments be made based on their sale, and exempting consumers from copyright infringement lawsuits for private uses of AHRA-covered devices:
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. 17 U.S.C. 1008
In RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074-1075 (9th Cir. 1999), this Court squarely held that [u]nder the plain meaning of the [AHRA's] definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices... Diamond also held that MP3 files contained on computer hard drives are not digital musical recordings. 180 F.3d at 1076-77. Thus, under Diamond, a computer is not a covered device, and a copy made by one Napster user of an MP3 file residing on another Napster user's computer hard drive is not a copy of a digital musical recording, and is not covered by Section 1008. 17 U.S.C. 1001(4)(A).
Here is the RIAA's bait and switch.
The bait:
The question being addressed in the Diamond Multimedia case was whether or not computers and MP3 files are "digital audio recording devices" and "digital musical recordings" for the purpose of determining whether those devices were required to implement SCMS.
The switch:
The RIAA is claiming that only activities using devices and media covered by the SCMS and royalty requirements are protected by 1008. Unfortunately for them, they have made this up out of thin air.
The appeals court directly addressed this argument in lifting the injunction. From the text of the stay:
The court reached its conclusion that Napster users were engaged in direct infringement in part because...
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.1
1 The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.
The RIAA can of course continue to pursue their failed legal theory in this highly symphathetic lower court, but if the lower court finds in favor of the RIAA for this reason, the appeals court has all but said it will overturn a finding based on such a theory.
The other key point in Napster's defense is the argument that the activities of Napsters' users are non-commercial. The RIAA claims that Napsters are engaging in commercial activity:
See also 17 U.S.C. 101 (defining "financial gain" for purposes of criminal No Electronic Theft Act to include the "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works")
The RIAA can argue this point all they want to, but I don't think that they can make the case. This law simply forbids "quota" or "ratio" requirements, nothing more. This is not how Napster works. When someone makes files available on Napster, there is no expectation that they will be rewarded for their contribution by being given subsequent access to other files. When someone downloads files from Napster, there is no expectation or requirement that they make files available in return. Napster is probably the only possible file sharing system that is absolutely, authentically non-commercial with respect to its users' activities.
The RIAA reply goes on to try and prove that users of Napster are not engaging in fair use. This is irrelevant because Section 1008 does not say:
A fair use defense may be raised against allegations of infringement of copyright based on...
It says, instead,
No action may be brought under this title alleging infringment of copyright based on...
If the activities of Napsters' users are protected by Section 1008, then the rest of the RIAA case disintegrates. If Napsters' users are not committing infringement, then fair use is not even an issue, and Napster cannot be liable for contributory infringement if there is no actual infringement.
In short, I don't think that the RIAA has made their case. Their counterargument is based on the exact legal theories that the Appeals court firmly rejected in overturning the injunction.
It's already built into the operating system. It's called IUCV, "Inter User Communications Vehicle." Basically, it's a connection based, lossless communications protocol that directly moves data between address spaces. Very slick.
Notice the the MPAA has not taken any action against DoD Speed Ripper. Wonder why?
Out of all of the many, many ways that have been invented and discovered to decode CSS, the only one that is suitable for building a commercial unlicensed DVD player, without the player restrictions (Macrovision, no digital video output), is DeCSS.
That's the real stakes. Unlicensed, unrestricted players. Copying is a red herring.
The manufacturers of the devices [not consumers] receive statutory immunity from infringement based on the use of those devices by consumers. It also means, however, that neither manufacturers of the devices [computers], nor the consumers who use them, receive immunity from suit for copyright infringement
In the RIAA's wildest dreams!
Here's what the Appeals judges had to say about this when they overturned the Napster injunction:
The court reached its conclusion that Napster users were engaged in direct infringement in part because:...
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.
If you want to know your rights, don't go to the RIAA looking for information.
One problem is that audio media is no longer seperable from non-audio media.
Yes. The Computer Industry was much, much smarter than the Recording Industry, which got caught with it's ass in the air and a big "sucker" sign firmly stapled to both cheeks. (PNG, anyone?)
First off, the Computer Industry got themselves completely written out of the law. This law was an RIAA law, and the Computer Industry wanted no part of it. Thus, the media royalty payments are only required on CDR media that is marketed and intended for use as audio media. Hey, no problem. The computer industry sells CDR drives that are intended for storing computer data, that just so happen to also handle audio data perfectly well, thank you.
Then, while the Recording Industry was attempting to sell special CD recorders that would only take $13.95 audio blanks, the Computer Industry was coming out with CDR drives that used 99 cent blanks.
An unfortunate bit of shortsightedness on the part of the Recording Industry.
However, they have quietly collected royalties for 8 years on all blank digital audio media, so you can't say that they haven't been paid. If anything, they have been overpaid.
When the law was passed, most DAT tapes (Digital Audio Tape was the issue in 1992; There were no recordable CDRs) were not being used to make copies of Garth Brooks and Bruce Springsteen albums -- they were being used by Grateful Dead tapers and garage bands and the like. Many of us bitterly resented that henceforth, up and coming bands would be forced to pay a "RIAA Tax" for the privilege of recording their own music, themselves, on digital media. This unfairness didn't stop the RIAA from collecting the royalties though, so the argument, that now that people finally have the technology to use digital audio recorders, media, and computers in the way that the law intended them to somehow makes music sharing immoral, doesn't really elicit a lot of sympathy.
None of this changes the fact that Congress changed copyright law in 1992 to permit ALL non-commercial audio taping. It simply isn't illegal, and it isn't immoral either.
What Congress needs to do is sit down and pass a law that says that:
1) The record companies receive a royalty for each piece of blank digital audio media sold, to compensate for the effect home copying has on their sales.
2) All non-commercial copying is allowed and defined as non-infringing, so that things like making mix tapes, and facilities like Napster are legal.
Oh, wait a minute, Congress did EXACTLY that in 1992, when they passed the Audio Home Recording Act.
if I make a musician's recorded, copyrighted work available to others at no charge by making a mix tape (or mix CD-R) out of CD's I own, that's theft?
Yes, it is. The artist receives no payment for that copy of his music.
No, when you bought the audio CDR, part of the money you paid was, by law, placed in a special fund to compensate the major recording labels. You paid actual money, which went to actual artists. Go look up the Audio Home Recording Act (AHRA). It's easy to find on the internet.
Well no, it's not.
Yes, it is illegal. That's what I've always been told. When did it change? Haven't you ever read the back of a CD? I have one right here -- "(C)opyright 2000 [artist's name]. All rights reserved. Unauthorized duplication is a violation of applicable laws in the USA." So when you distribute copies of that music, whether on CD-R or on Napster, you're committing an illegal activity. Everybody does it, but that does not change the fact that you're breaking the law. And if you're telling me that these "applicable laws" provide no such protection, we need harsher laws. Fucking selfish American consumers.
Had it ever occurred to you that the record companies might be overstating their actual rights, because they don't want you to know about yours?
Go back to the Audio Home Recording Act, and read paragraph 1008 if you want to find out what your actual rights are, instead of trusting the record companies to spell them out for you on the back of CDs.
C) USC Title 17, Chapter 10, Paragraph 1008 legalizes all non-commercial copying of copyrighted music.
Yes it does. Go look it up.
Why did Congress pass this law?
Because the record industry wanted a tax to be paid to them for all digital audio media sold. Congress said, "Ok, but you have to agree that all non-commercial copying is not copyright infringement." The industry was happy with the outcome and has been accepting money for 8 years on every digital audio tape and audio CDR sold.
In return, all non-commercial copying of copyrighted music is legal. That's exactly what Napster's users are doing..
"But wait!", you say. "Napster is a commercial, for-profit operation!"
Yes, but the activities of its users are non-commercial. There is no law that says that it is illegal to form a for-profit company to aid people in engaging in not-for-profit activities.
Don't forget, in your analysis, that the public is paying the RIAA a surcharge for every digital audio tape and audio CDR sold. That is why music sharing is neither immoral, nor illegal.
Have you read the text of the Audio Home Recording Act?
Back in 1992, the record companies went to Congress to try and obtain royalty payments on blank digital audio media.
Congress made them compromise. Both sides got something.
The record companies have, for the last 8 years, received a payment for each and every digital audio tape and blank audio CDR sold. This was to compensate the record industry for lost sales due to non-commercial, home copying.
However, Congress does not like to pass laws in which people are taxed on one hand, and the activity they are being taxed on is made illegal on the other hand, so they added this provision:
USC Title 17, Chapter 10, Paragraph 1008:
No action may be brought under this title [Title 17 == the copyright code] 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.
In short, Congress said that if the Recording industry wanted Congress to tax home recording media, then that home recording would have to be legalized.
They did just that. Paragraph 1008 defines all non-commercial copying of copyrighted music as non-infringing. It isn't illegal!
The Napster judge tried to ignore this law, but the Court of Appeals basically told the judge that her reasoning was completely wrong:
The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers;
When Congress passed the AHRA, the music industry was not up in arms. Instead, the industry was quite happy, because they were to begin to receive, and have received continuously for 8 years, a stream of "royalties" from the sale of blank digital audio recording media. At the time, I, and many others, thought that this law was extremely unfair, because it created a royalty on ALL media, not just those media used to copy other people's copyrighted works. In other words, if a garage band bought blank CDRs to press their album on, they paid royalties to the RIAA, which distributed the royalties based on their own sales figures.
In retrospect, if the courts can be bothered to uphold paragraph 1008, this law will show itself to be the biggest bargain ever struck between the people and the Recording industry, because it completely and unambiguously legalized all Napster-like activity!
If the recording industry no longer feel that the royalties they are receiving are adaquate, they have every right to go to Congress and ask that the royalty rate be increased. However, Napster is NOT stealing, because they record industry IS receiving payment, in the form of a tax on recording media.
The mere fact that this consumer right has been mostly dormant for 8 years (while record industry profits from blank digital audio media have HARDLY been dormant) is no reason to assert that it no longer exists now that the technology has matured that allows users to exercise that consumer right.
Everything she said could equally apply to a photocopy machine. Perhaps Xerox should be shut down until they figure out a way to ensure that their photocopiers cannot be used to infringe copyright.
Do you see any difference, the slightest difference at all between, for instance,
Walking into a museum, grabbing a painting and running out the door (looting)
and
Walking into a museum, snapping a picture of a painting, and walking out the door?(infringing)
That is the difference between looting and infringing. If you can't understand the difference, or if you think that there's no difference, then don't expect a lot of people to take your ethical arguments very seriously.
How long will it be before we start hearing "You don't buy the music, you buy a license to use the music the way we say."
This was the exact argument made by the MPAA in the 2600 DeCSS case. Their argument at trial was that when you buy a DVD, you are only purchasing a license to play that DVD on an MPAA-authorized and licensed DVD player.
You're right. There's no such thing as a free lunch.
I've never heard of Copyright described in terms of a contract, but the definition actually fits quite nicely.
The first party to the contract is the artists. The second party to the contract is the public.
The artists agree to make their work available, and commit it to the public domain. This is embodied in the "limited times" language of the constitution. The work is consideration.
The public, as represented by the government, agrees to, in exchange, grant a limited commercial monopoly over the work. The monopoly is limited both in the sense that the copyright must expire, and also by various doctrines, such as first sale, and fair use.
Both sides benefit from this arrangement. The artists gain a commercial monopoly over their work, and the public receives the work into the public domain, creating the national heritage.
The RIAA and MPAA are attempting, through a combination of technical measures and new laws, to eliminate both the first sale and fair use provisions. They have already effectively eliminated the concept of copyright expiration by the simple expedience of bribing Congress to extend the copyright terms 20 years at a time. They also bought the DMCA, and are fighting tooth and nail to secure their purchase -- they have purchased the elimination of fair use.
Quite simply, the RIAA and MPAA want to change the copyright system from an exchange of consideration -- a contract -- between artists and the public, into a public subsidy, where copyright owners acrue all the benefits perpetually, and the public acrues only the "benefit" of being subject to the complete control of the media industry.
That is the "free lunch" that the MPAA and RIAA want. Napster is the public saying, "NO."
DeCSS is the only DVD descrambling technology that is suitable for manufacturing a DVD player without the user restrictions mandated by the DVD-CCA licensing contract, such as a ban on unencrypted digital outputs, and the Macrovision requirement.
In fact there are several Windows programs to decrypt DVDs, why are they not in court?
Good question. Why aren't they?
Other technologies, such as DVD rip are not suitable for development of an unrestricted DVD player because they are simply modifications of an existing, licensed player. You could not legally use these programs to manufacture an unlicensed player. Tellingly, the MPAA has made no moves against people who distribute DVD decryption programs based on hacks to licensed CSS implementations, even though they perform the same function.
The only difference between these programs and DeCSS is not that DeCSS enables copying and the other programs don't. The difference is that by using DeCSS one is legally free and clear of the industry tying arrangement between the MPAA, the DVD-CCA, and the player manufacturers that controls and restricts what consumer features are allowed and disallowed on DVD player products.
As usual in the entertainment industry, the real issue is over control and power. Copying in this case is a red herring designed to draw attention away from the MPAA's real interests.
You want to sell albums. People who are not already fans are not going to buy your album in numbers unless they have somehow become familiar with at least one song on your album. The record companies get the public familiar with one song per album -- the "radio song" -- by saturating the airwaves with those few songs. It takes a few listens, but eventually people start to learn the riffs, and recognize the song, and now they might want to pick up the album.
You don't have the option of saturating the airwaves with your song, because you don't have that resource. However, in order for people to want to buy your album, they are still going to have to hear your music somehow.
MP3s of your songs start to pop up on Napster, and you find out that thousands of people are trading your songs around. How do you evaluate this?
Remember, downloads are NOT a count of your potential market. They are a count of your overall exposure.
Lots of people are going to download your songs and not like them. They were never part of your target market. Lots of other people are going to download your songs, stick them in their directory, occasionally listen to them, but never buy your album. This is the internet equivalent of people who listen to radio stations, but don't buy albums. In your case, they're free riders. But they were never part of your market. Your market is people who, as we both agree, gain enough psychological satisfaction from buying a physical album that they are willing to spend actual money to do so. This is a tiny percentage of the population for you, but that's true for radio also.
Napster is nowhere near as efficient as radio. With radio, you're song would be injected into the subconscious of literally millions and millions of people at once. With Napster, you're talking tens or hundreds of thousands at the most.
The question is, how are you doing relative to how you would be doing if you had a radio campaign going for you?
Well, first off, If those people who are downloading your songs from Napster didn't first hear your songs from Napster, where on earth would they have heard from? I mean, you're not getting radio exposure. What else do you have? In one sense it CAN'T drive the album-buying-candidate sliver of the napster-using population away from your music, because without MP3s and without Napster, they probably never would have heard your music in the first place. The big labels have the radio stations and you don't.
I don't have any sort of market research, so I'm going to make up some numbers here.
Let's say you get 100,000 downloads and 100 direct purchases. Is this realistic?
Ok, that's 1/10th of 1%.
Assume that if you had a radio song, maybe 2/3 the people in the U.S. would, at some point, would be exposed to your song, either by listening to the radio, or being in a place where a radio is playing, at some time or another, or being stuck on hold, or sitting in a waiting room. No one escaped the Macarena.
That would be 2/3 of about 275,000,000 people, say about 200,000,000 people, for the sake of having a nice, round number. If a band that is exposed to 200,000,000 people sells 1,000,000 records, that means that they have sold music to approximately 5/10th of 1% of the people who have been exposed to their music.
If you think of it that way, you are doing 1/5th as well on Napster as that million-seller band is doing on the radio at selling albums.
But you didn't have to sign your rights away to a label, and you don't have a promotional advance to pay off out of your royalties. You bypassed all the middlemen and won a respectable percentage of a very, very tiny pie.
So what benefits indi artists?
To shut down Napster, which is uncontrollable by the labels, and return to the system where people learn about music from the radio and TV, which are controlled by the labels?
To scale Napster up to increase the exposure of the bands with music on Napster so that they reach a large enough percentage of the population that that 1/10th of 1% hypothetical purchase rate becomes substantial? If downloading from Napster is found to be fair use and not copyright infringement, it will probably explode in popularity, so this might actually happen.
Or to replace Napster with something that pays royalties? I simply can't imagine that a royalty based internet music distribution system wouldn't be dominated and controlled by the labels.
Not surprisingly, the 3rd option is exactly what the labels want. What do you think their agenda is? Protecting artists' rights, or regaining control of the runaway gravy train?
Well, you create art, and sell product. You're unfortunate in that your art is vibrating air as opposed to a canvas covered with pigment created by your hand, or something like that. That means that your music itself isn't your product. The music industry has traditionally solved this problem by making concerts and albums the product.
No one -- not you nor the big labels have figured out how to make the music itself into the product. On the radio, you give away the music and sell the advertising. People hate pay-per-listen and other micropayment systems. If anything, Napster has driven into the dust the illusion that the future of music is in selling music files on the internet. Your point is well taken that this hits you harder then it hits the big labels, but Napster isn't the problem. Napster illustrates the problem. The problem is that any copy protected music file format is intrinsically less valuable then the same music in an unprotected format. An encrypted music file is an inferior product. There is less you can do with it. Napster is good in that it demolishes a flawed product theory, so smart people can stop wasting their time on it.
The end result is that you still have to convince people to come to your concerts and/or buy your albums, which is as hard as ever. Probably even harder, because every indi band in the world is setting up a web site these days.
Big labels still sell CDs because the CDs aren't so much considered "music" as they are "something that a big-name band is selling" -- like a t-shirt that you can play on your stereo.
Or they still sell CDs because people like the product. They like the visual and tactile sensation of buying a CD, opening it, looking at the art, listening to the disc, filing it in their collection, playing the t-shirt on their stereo... People do buy CDs from small bands, but if they're like me, they tend to do so at concerts, where it's super convenient, or on the net. Of course, in order to sell albums on the net, people have to hear your music first, which means either MP3s, or something else. What? So long as your MP3 files include the URL of your web site, so people can find your home page, Napster is a damn efficient way to spread your music. Your fans pay for the download and upload bandwidth instead of you.
Small bands, however, don't have the hype behind them for their music to be considered anything other than music.
Or, alternately, small bands don't have the resources required to efficiently and effectively turn their music into product, market it, and distribute it. I mean, that's what you're expecting when you sign with a label. That doesn't mean that your music isn't considered product... It might mean that your product is less convenient to obtain then Metallica's product, and a lot of music purchases are sort of reflexive, discretionary purchases. Unless you've got really hard core fans who will seek you out, in which case you're winning.
If nothing else, your essay and this discussion will probably create some interest in your music and generate some downloads. You probably have a terrible download-to-purchase ratio, but everyone has that. What is the listener-to-purchaser ratio of a radio song? The big labels beef their odds by repeating the same songs over and over. They are playing the $100.00 slot machine. You're playing the penny slots. They have bigger wins and bigger losses.
But hey, you'll probably pick up some fans from this. If you do, though, it'll be on the merits of your music, not on the hype in this slashdot thread surrounding your essay. So that's good, right?
Slashdot Mirror
The price of audio CD-Rs has pretty much fallen through the floor.
Originally, the price for audio CDRs was much, much higher -- in the $13-$14 range PER DISC.
There is no real reason for this, as the "RIAA Tax" is only 2% of the CD wholesale price, and the cost of producing an audio CDR is no more then the cost of producing a data CDR. Apparently, the CDR manufacturers have "broken rank" with the RIAA's agenda of discouraging home recording through high priced media. A quick web search now turns up blank audio-only CDRs for $1.13 each.
But yes, the record companies do get a cut when you buy an audio CD. For that $1.13 CD, the RIAA receives between two and three cents, whether you use that CDR to copy a Metallica CD, or record your own band in your garage.
Isn't it about time sendmail was updated to use strong encryption to protect all mail? Perhaps RSA keys when the patent runs out ...
If anything, (4) is CLEARLY covered and protected by Section 1008. Even the RIAA seems to agree on that.
I meant (3), not (4). Grumble.
You make an excellent point that I had never even considered. The RIAA's interpretation -- that Section 1008 only protects copying done with Section 1001 equipment and media -- is obviously an incorrect interpretation, because Section 1008 covers both digital and analog equipment and media, while the rest of the act makes it clear that only digital equipment and media are covered by SCMS and subject to royalties. If it was Congress' intent that only activity using AHRA-restricted devices and media were protected by Section 1008, then why does Section 1008 protect activities using analog equipment and media, when there are no "covered" analog recorders or media?
You ask a good question though. Why is it good public policy to allow all non-commercial copying, instead of just non-commercial copying onto "covered" devices?
In general, it is bad public policy to collect taxes or royalties on a product or activity, and at the same time declare that activity to be illegal. It would be one thing if the Congressional purpose of this law were to impede non-commercial copying, as, for instance, a punitive tax levied on illegal drugs is designed to discourage the drug trade by allowing the IRS to go after convicted drug traffickers for "tax evasion", but that was clearly not what Congress was trying to do. Congress was not trying to discourage or impede consumer use of digital audio hardware and media. On the contrary, the AHRA was promoted both by Congress and the RIAA as "enabling legislation" that would break the legal gridlock, and bring digital technology to the masses.
I believe that Congress created a flat exemption for all non-commercial copying in order to avoid the problem of "tainted" copies.
For instance, if the RIAA interpretation were correct, here would be some of the consequences:
1) You buy an audio DAT, pay the royalty, and copy a phonograph record into the DAT. This would be legal.
2) You take the DAT you just made in step 1, and upload it onto a computer. You then use a digital audio processing tool to remove the surface rumble and needle clicks and pops. You record the cleaned-up results on a second audio DAT, on which you have also paid royalties.
Now, is (2) a legal or an illegal activity? When you uploaded the copyrighted work to your computer, you transferred it from a "covered" device to a non-covered device. Under the RIAA's interpretation, the copy on your computer would now be an illegal copy.
How about the resulting, cleaned-up DAT. Is that legal or illegal? Under the RIAA's interpretation, it was made from an "illegal" copy, so that would presumably make it illegal.
Back to the issue at hand -- Napster.
3) You borrow a CD from your sister, and use an AHRA-covered, SCMS compliant CD player and AHRA-covered, SCMS compliant standalong CD recorder to make a CDR copy of that CD, on an audio CDR on which you have paid the royalty.
If anything, (4) is CLEARLY covered and protected by Section 1008. Even the RIAA seems to agree on that.
4) You purchase a blank Audio CDR, paying the industry royalty. You now go onto Napster, and download 74 minutes of music, which you use to fill that CDR.
Is this legal? You have done, in essence, exactly what Congress authorized. You have purchased a piece of digital audio media, paid a royalty on that media, and filled it with copyrighted music.
Under the RIAA's interpretation, the reason why (3) is covered, but (4) is not, is that in (4), the use of Napster -- a non-AHRA covered technology, is considered illegal by the RIAA, and, therefore, the CDR you made is illegal, even though you paid a royalty on it!
If this doctrine were to be accepted into law, then it would be impossible to determine whether any given digital audio recording was legally or illegally acquired. This would be bad public policy. Hence, the blanket exemption on all non-commercial copying. The public benefit is that there is no such thing as a "tainted" copy.
As for your comment about "your days as a software development are numbered", I remind you that the royalty provisions and resulting public exemption on copyright infringement only applies to audio recordings. Title 17 Chapter 10 ONLY applies to musical copyrighted works, not to computer programs, and not to audiovisual works, like DVDs.
As for the third argument, I see no cause-and-effect relationship between the two. After all, the MPAA designed and implemented CSS at a time when copying of DVDs was impossible.
The court ruled that the computer, hard drive, and rio are not digital audio recorders, for purposes of establishing a requirement to implement SCMS and pay an industry royalty.
This is really important. If the RIAA had convinced the court that personal computers are really "digital audio recorders", then the RIAA would receive a 2% royalty on all computers. The court said, in effect, "no way".
The Napster case is completely different. It is not about establishing a royalty/SCMS requirement. It is about whether section 1008, a different section, creates immunity for all non-commercial copying, or just for AHRA-restricted devices.
The appeals court firmly laid down the law. "No," they in effect told the lower court and the RIAA, "your theory is wrong. Section 1008 immunizes ALL non-commercial copying. The law says so, and the congressional record says that that's what Congress intended."
I'm betting on the district court to find in favor of the RIAA, the appeals court to reverse and find in favor of Napster, and who knows what the Supreme Court will do.
From the brief:
The AHRA balances the interests of manufacturers, consumers, and copyright owners by plac[ing] restrictions only upon a specific type of recording device, specifically defined in the statute, requiring such devices to be equipped with copy protections and that royalty payments be made based on their sale, and exempting consumers from copyright infringement lawsuits for private uses of AHRA-covered devices: In RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 1074-1075 (9th Cir. 1999), this Court squarely held that [u]nder the plain meaning of the [AHRA's] definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices... Diamond also held that MP3 files contained on computer hard drives are not digital musical recordings. 180 F.3d at 1076-77. Thus, under Diamond, a computer is not a covered device, and a copy made by one Napster user of an MP3 file residing on another Napster user's computer hard drive is not a copy of a digital musical recording, and is not covered by Section 1008. 17 U.S.C. 1001(4)(A).
Here is the RIAA's bait and switch.
The bait:
The question being addressed in the Diamond Multimedia case was whether or not computers and MP3 files are "digital audio recording devices" and "digital musical recordings" for the purpose of determining whether those devices were required to implement SCMS.
The switch:
The RIAA is claiming that only activities using devices and media covered by the SCMS and royalty requirements are protected by 1008. Unfortunately for them, they have made this up out of thin air.
The appeals court directly addressed this argument in lifting the injunction. From the text of the stay:
The court reached its conclusion that Napster users were engaged in direct infringement in part because
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.1
1 The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.
The RIAA can of course continue to pursue their failed legal theory in this highly symphathetic lower court, but if the lower court finds in favor of the RIAA for this reason, the appeals court has all but said it will overturn a finding based on such a theory.
The other key point in Napster's defense is the argument that the activities of Napsters' users are non-commercial. The RIAA claims that Napsters are engaging in commercial activity:The RIAA can argue this point all they want to, but I don't think that they can make the case. This law simply forbids "quota" or "ratio" requirements, nothing more. This is not how Napster works. When someone makes files available on Napster, there is no expectation that they will be rewarded for their contribution by being given subsequent access to other files. When someone downloads files from Napster, there is no expectation or requirement that they make files available in return. Napster is probably the only possible file sharing system that is absolutely, authentically non-commercial with respect to its users' activities.
The RIAA reply goes on to try and prove that users of Napster are not engaging in fair use. This is irrelevant because Section 1008 does not say:It says, instead, If the activities of Napsters' users are protected by Section 1008, then the rest of the RIAA case disintegrates. If Napsters' users are not committing infringement, then fair use is not even an issue, and Napster cannot be liable for contributory infringement if there is no actual infringement.
In short, I don't think that the RIAA has made their case. Their counterargument is based on the exact legal theories that the Appeals court firmly rejected in overturning the injunction.
It's already built into the operating system. It's called IUCV, "Inter User Communications Vehicle." Basically, it's a connection based, lossless communications protocol that directly moves data between address spaces. Very slick.
Notice the the MPAA has not taken any action against DoD Speed Ripper. Wonder why?
Out of all of the many, many ways that have been invented and discovered to decode CSS, the only one that is suitable for building a commercial unlicensed DVD player, without the player restrictions (Macrovision, no digital video output), is DeCSS.
That's the real stakes. Unlicensed, unrestricted players. Copying is a red herring.
From the linked to RIAA document:
...
The manufacturers of the devices [not consumers] receive statutory immunity from infringement based on the use of those devices by consumers. It also means, however, that neither manufacturers of the devices [computers], nor the consumers who use them, receive immunity from suit for copyright infringement
In the RIAA's wildest dreams!
Here's what the Appeals judges had to say about this when they overturned the Napster injunction:
The court reached its conclusion that Napster users were engaged in direct infringement in part because:
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers.
If you want to know your rights, don't go to the RIAA looking for information.
One problem is that audio media is no longer seperable from non-audio media.
Yes. The Computer Industry was much, much smarter than the Recording Industry, which got caught with it's ass in the air and a big "sucker" sign firmly stapled to both cheeks. (PNG, anyone?)
First off, the Computer Industry got themselves completely written out of the law. This law was an RIAA law, and the Computer Industry wanted no part of it. Thus, the media royalty payments are only required on CDR media that is marketed and intended for use as audio media. Hey, no problem. The computer industry sells CDR drives that are intended for storing computer data, that just so happen to also handle audio data perfectly well, thank you.
Then, while the Recording Industry was attempting to sell special CD recorders that would only take $13.95 audio blanks, the Computer Industry was coming out with CDR drives that used 99 cent blanks.
Guess who won.
An unfortunate bit of shortsightedness on the part of the Recording Industry.
However, they have quietly collected royalties for 8 years on all blank digital audio media, so you can't say that they haven't been paid. If anything, they have been overpaid.
When the law was passed, most DAT tapes (Digital Audio Tape was the issue in 1992; There were no recordable CDRs) were not being used to make copies of Garth Brooks and Bruce Springsteen albums -- they were being used by Grateful Dead tapers and garage bands and the like. Many of us bitterly resented that henceforth, up and coming bands would be forced to pay a "RIAA Tax" for the privilege of recording their own music, themselves, on digital media. This unfairness didn't stop the RIAA from collecting the royalties though, so the argument, that now that people finally have the technology to use digital audio recorders, media, and computers in the way that the law intended them to somehow makes music sharing immoral, doesn't really elicit a lot of sympathy.
None of this changes the fact that Congress changed copyright law in 1992 to permit ALL non-commercial audio taping. It simply isn't
illegal, and it isn't immoral either.
What Congress needs to do is sit down and pass a law that says that:
1) The record companies receive a royalty for each piece of blank digital audio media sold, to compensate for the effect home copying has on their sales.
2) All non-commercial copying is allowed and defined as non-infringing, so that things like making mix tapes, and facilities like Napster are legal.
Oh, wait a minute, Congress did EXACTLY that in 1992, when they passed the Audio Home Recording Act.
Don't believe me? Check out USC Title 17, Chapter 10. Paragraph 1008 is particularly interesting!
if I make a musician's recorded, copyrighted work available to others at no charge by making a mix tape (or mix CD-R) out of CD's I own, that's theft?
Yes, it is. The artist receives no payment for that copy of his music.
No, when you bought the audio CDR, part of the money you paid was, by law, placed in a special fund to compensate the major recording labels. You paid actual money, which went to actual artists. Go look up the Audio Home Recording Act (AHRA). It's easy to find on the internet.
Well no, it's not.
Yes, it is illegal. That's what I've always been told. When did it change? Haven't you ever read the back of a CD? I have one right here -- "(C)opyright 2000 [artist's name]. All rights reserved. Unauthorized duplication is a violation of applicable laws in the USA." So when you distribute copies of that music, whether on CD-R or on Napster, you're committing an illegal activity. Everybody does it, but that does not change the fact that you're breaking the law. And if you're telling me that these "applicable laws" provide no such protection, we need harsher laws. Fucking selfish American consumers.
Had it ever occurred to you that the record companies might be overstating their actual rights, because they don't want you to know about yours?
Go back to the Audio Home Recording Act, and read paragraph 1008 if you want to find out what your actual rights are, instead of trusting the record companies to spell them out for you on the back of CDs.
How about:
C) USC Title 17, Chapter 10, Paragraph 1008 legalizes all non-commercial copying of copyrighted music.
Yes it does. Go look it up.
Why did Congress pass this law?
Because the record industry wanted a tax to be paid to them for all digital audio media sold. Congress said, "Ok, but you have to agree that all non-commercial copying is not copyright infringement." The industry was happy with the outcome and has been accepting money for 8 years on every digital audio tape and audio CDR sold.
In return, all non-commercial copying of copyrighted music is legal. That's exactly what Napster's users are doing..
"But wait!", you say. "Napster is a commercial, for-profit operation!"
Yes, but the activities of its users are non-commercial. There is no law that says that it is illegal to form a for-profit company to aid people in engaging in not-for-profit activities.
Don't forget, in your analysis, that the public is paying the RIAA a surcharge for every digital audio tape and audio CDR sold. That is why music sharing is neither immoral, nor illegal.
Have you read the text of the Audio Home Recording Act?
Back in 1992, the record companies went to Congress to try and obtain royalty payments on blank digital audio media.
Congress made them compromise. Both sides got something.
The record companies have, for the last 8 years, received a payment for each and every digital audio tape and blank audio CDR sold. This was to compensate the record industry for lost sales due to non-commercial, home copying.
However, Congress does not like to pass laws in which people are taxed on one hand, and the activity they are being taxed on is made illegal on the other hand, so they added this provision:
USC Title 17, Chapter 10, Paragraph 1008:
No action may be brought under this title [Title 17 == the copyright code] 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.
In short, Congress said that if the Recording industry wanted Congress to tax home recording media, then that home recording would have to be legalized.
They did just that. Paragraph 1008 defines all non-commercial copying of copyrighted music as non-infringing. It isn't illegal!
The Napster judge tried to ignore this law, but the Court of Appeals basically told the judge that her reasoning was completely wrong:
The court below ignored, however, that 17 U.S.C. 1008 permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers;
When Congress passed the AHRA, the music industry was not up in arms. Instead, the industry was quite happy, because they were to begin to receive, and have received continuously for 8 years, a stream of "royalties" from the sale of blank digital audio recording media. At the time, I, and many others, thought that this law was extremely unfair, because it created a royalty on ALL media, not just those media used to copy other people's copyrighted works. In other words, if a garage band bought blank CDRs to press their album on, they paid royalties to the RIAA, which distributed the royalties based on their own sales figures.
In retrospect, if the courts can be bothered to uphold paragraph 1008, this law will show itself to be the biggest bargain ever struck between the people and the Recording industry, because it completely and unambiguously legalized all Napster-like activity!
If the recording industry no longer feel that the royalties they are receiving are adaquate, they have every right to go to Congress and ask that the royalty rate be increased. However, Napster is NOT stealing, because they record industry IS receiving payment, in the form of a tax on recording media.
The mere fact that this consumer right has been mostly dormant for 8 years (while record industry profits from blank digital audio media have HARDLY been dormant) is no reason to assert that it no longer exists now that the technology has matured that allows users to exercise that consumer right.
Everything she said could equally apply to a photocopy machine. Perhaps Xerox should be shut down until they figure out a way to ensure that their photocopiers cannot be used to infringe copyright.
And we can only hope that the judge reaches your same, enlightened conclusion in his deliberations.
:-)
Looting? Are you out of your mind?
Do you see any difference, the slightest difference at all between, for instance,
Walking into a museum, grabbing a painting and running out the door (looting)
and
Walking into a museum, snapping a picture of a painting, and walking out the door? (infringing)
That is the difference between looting and infringing. If you can't understand the difference, or if you think that there's no difference, then don't expect a lot of people to take your ethical arguments very seriously.
How long will it be before we start hearing "You don't buy the music, you buy a license to use the music the way we say."
This was the exact argument made by the MPAA in the 2600 DeCSS case. Their argument at trial was that when you buy a DVD, you are only purchasing a license to play that DVD on an MPAA-authorized and licensed DVD player.
You're right. There's no such thing as a free lunch.
I've never heard of Copyright described in terms of a contract, but the definition actually fits quite nicely.
The first party to the contract is the artists.
The second party to the contract is the public.
The artists agree to make their work available, and commit it to the public domain. This is embodied in the "limited times" language of the constitution. The work is consideration.
The public, as represented by the government, agrees to, in exchange, grant a limited commercial monopoly over the work. The monopoly is limited both in the sense that the copyright must expire, and also by various doctrines, such as first sale, and fair use.
Both sides benefit from this arrangement. The artists gain a commercial monopoly over their work, and the public receives the work into the public domain, creating the national heritage.
The RIAA and MPAA are attempting, through a combination of technical measures and new laws, to eliminate both the first sale and fair use provisions. They have already effectively eliminated the concept of copyright expiration by the simple expedience of bribing Congress to extend the copyright terms 20 years at a time. They also bought the DMCA, and are fighting tooth and nail to secure their purchase -- they have purchased the elimination of fair use.
Quite simply, the RIAA and MPAA want to change the copyright system from an exchange of consideration -- a contract -- between artists and the public, into a public subsidy, where copyright owners acrue all the benefits perpetually, and the public acrues only the "benefit" of being subject to the complete control of the media industry.
That is the "free lunch" that the MPAA and RIAA want. Napster is the public saying, "NO."
Actually, the problem is mostly with people who post as "Anonymous Coward." Set your threshold to a higher value, and the problem diminishes.
- AC
DeCSS is NOT used primarily for law breaking.
Well then, what is it used for?
DeCSS is the only DVD descrambling technology that is suitable for manufacturing a DVD player without the user restrictions mandated by the DVD-CCA licensing contract, such as a ban on unencrypted digital outputs, and the Macrovision requirement.
In fact there are several Windows programs to decrypt DVDs, why are they not in court?
Good question. Why aren't they?
Other technologies, such as DVD rip are not suitable for development of an unrestricted DVD player because they are simply modifications of an existing, licensed player. You could not legally use these programs to manufacture an unlicensed player. Tellingly, the MPAA has made no moves against people who distribute DVD decryption programs based on hacks to licensed CSS implementations, even though they perform the same function.
The only difference between these programs and DeCSS is not that DeCSS enables copying and the other programs don't. The difference is that by using DeCSS one is legally free and clear of the industry tying arrangement between the MPAA, the DVD-CCA, and the player manufacturers that controls and restricts what consumer features are allowed and disallowed on DVD player products.
As usual in the entertainment industry, the real issue is over control and power. Copying in this case is a red herring designed to draw attention away from the MPAA's real interests.
The only wasted vote is for a candidate that you do not believe in.
Alright ... this sucked. Let me try again.
You want to sell albums. People who are not already fans are not going to buy your album in numbers unless they have somehow become familiar with at least one song on your album. The record companies get the public familiar with one song per album -- the "radio song" -- by saturating the airwaves with those few songs. It takes a few listens, but eventually people start to learn the riffs, and recognize the song, and now they might want to pick up the album.
You don't have the option of saturating the airwaves with your song, because you don't have that resource. However, in order for people to want to buy your album, they are still going to have to hear your music somehow.
MP3s of your songs start to pop up on Napster, and you find out that thousands of people are trading your songs around. How do you evaluate this?
Remember, downloads are NOT a count of your potential market. They are a count of your overall exposure.
Lots of people are going to download your songs and not like them. They were never part of your target market. Lots of other people are going to download your songs, stick them in their directory, occasionally listen to them, but never buy your album. This is the internet equivalent of people who listen to radio stations, but don't buy albums. In your case, they're free riders. But they were never part of your market. Your market is people who, as we both agree, gain enough psychological satisfaction from buying a physical album that they are willing to spend actual money to do so. This is a tiny percentage of the population for you, but that's true for radio also.
Napster is nowhere near as efficient as radio. With radio, you're song would be injected into the subconscious of literally millions and millions of people at once. With Napster, you're talking tens or hundreds of thousands at the most.
The question is, how are you doing relative to how you would be doing if you had a radio campaign going for you?
Well, first off, If those people who are downloading your songs from Napster didn't first hear your songs from Napster, where on earth would they have heard from? I mean, you're not getting radio exposure. What else do you have? In one sense it CAN'T drive the album-buying-candidate sliver of the napster-using population away from your music, because without MP3s and without Napster, they probably never would have heard your music in the first place. The big labels have the radio stations and you don't.
I don't have any sort of market research, so I'm going to make up some numbers here.
Let's say you get 100,000 downloads and 100 direct purchases. Is this realistic?
Ok, that's 1/10th of 1%.
Assume that if you had a radio song, maybe 2/3 the people in the U.S. would, at some point, would be exposed to your song, either by listening to the radio, or being in a place where a radio is playing, at some time or another, or being stuck on hold, or sitting in a waiting room. No one escaped the Macarena.
That would be 2/3 of about 275,000,000 people, say about 200,000,000 people, for the sake of having a nice, round number. If a band that is exposed to 200,000,000 people sells 1,000,000 records, that means that they have sold music to approximately 5/10th of 1% of the people who have been exposed to their music.
If you think of it that way, you are doing 1/5th as well on Napster as that million-seller band is doing on the radio at selling albums.
But you didn't have to sign your rights away to a label, and you don't have a promotional advance to pay off out of your royalties. You bypassed all the middlemen and won a respectable percentage of a very, very tiny pie.
So what benefits indi artists?
To shut down Napster, which is uncontrollable by the labels, and return to the system where people learn about music from the radio and TV, which are controlled by the labels?
To scale Napster up to increase the exposure of the bands with music on Napster so that they reach a large enough percentage of the population that that 1/10th of 1% hypothetical purchase rate becomes substantial? If downloading from Napster is found to be fair use and not copyright infringement, it will probably explode in popularity, so this might actually happen.
Or to replace Napster with something that pays royalties? I simply can't imagine that a royalty based internet music distribution system wouldn't be dominated and controlled by the labels.
Not surprisingly, the 3rd option is exactly what the labels want. What do you think their agenda is? Protecting artists' rights, or regaining control of the runaway gravy train?
Well, you create art, and sell product. You're unfortunate in that your art is vibrating air as opposed to a canvas covered with pigment created by your hand, or something like that. That means that your music itself isn't your product. The music industry has traditionally solved this problem by making concerts and albums the product.
... People do buy CDs from small bands, but if they're like me, they tend to do so at concerts, where it's super convenient, or on the net. Of course, in order to sell albums on the net, people have to hear your music first, which means either MP3s, or something else. What? So long as your MP3 files include the URL of your web site, so people can find your home page, Napster is a damn efficient way to spread your music. Your fans pay for the download and upload bandwidth instead of you.
... It might mean that your product is less convenient to obtain then Metallica's product, and a lot of music purchases are sort of reflexive, discretionary purchases. Unless you've got really hard core fans who will seek you out, in which case you're winning.
No one -- not you nor the big labels have figured out how to make the music itself into the product. On the radio, you give away the music and sell the advertising. People hate pay-per-listen and other micropayment systems. If anything, Napster has driven into the dust the illusion that the future of music is in selling music files on the internet. Your point is well taken that this hits you harder then it hits the big labels, but Napster isn't the problem. Napster illustrates the problem. The problem is that any copy protected music file format is intrinsically less valuable then the same music in an unprotected format. An encrypted music file is an inferior product. There is less you can do with it. Napster is good in that it demolishes a flawed product theory, so smart people can stop wasting their time on it.
The end result is that you still have to convince people to come to your concerts and/or buy your albums, which is as hard as ever. Probably even harder, because every indi band in the world is setting up a web site these days.
Big labels still sell CDs because the CDs aren't so much considered "music" as they are "something that a big-name band is selling" -- like a t-shirt that you can play on your stereo.
Or they still sell CDs because people like the product. They like the visual and tactile sensation of buying a CD, opening it, looking at the art, listening to the disc, filing it in their collection, playing the t-shirt on their stereo
Small bands, however, don't have the hype behind them for their music to be considered anything other than music.
Or, alternately, small bands don't have the resources required to efficiently and effectively turn their music into product, market it, and distribute it. I mean, that's what you're expecting when you sign with a label. That doesn't mean that your music isn't considered product
If nothing else, your essay and this discussion will probably create some interest in your music and generate some downloads. You probably have a terrible download-to-purchase ratio, but everyone has that. What is the listener-to-purchaser ratio of a radio song? The big labels beef their odds by repeating the same songs over and over. They are playing the $100.00 slot machine. You're playing the penny slots. They have bigger wins and bigger losses.
But hey, you'll probably pick up some fans from this. If you do, though, it'll be on the merits of your music, not on the hype in this slashdot thread surrounding your essay. So that's good, right?