"So, since it's no longer difficult to make & distribute copies of music, why are the companies that make up the RIAA still charging the same prices?"
As you correctly point out below, CD prices are in freefall. The $10 CDs today were $18 in 2000 - that's $23 in 2009 bucks. It was also $18 in 1985 -- if record labels were still charging the same prices, CDs would cost $36 today.
"Why is Walmart selling CDs for $10 when I can get the same songs for free? Why is Apple selling songs for $1 when I can get the same songs for free?"
A couple of points to understand here; I'll try to be as succinct as possible.
First, music does have a certain per-piece cost. Even digital downloads -- the costs of production are amortized across expected sales. I know this is a brain-boggler for many Slashdotters, but trust me, it's correct.
In the case of that CD you have royalties (folks often forget the mechanicals which can be up to $0.16 per track -- that's defined by law and doesn't include the negotiated performance royalties), the pressing and shipping costs, and the costs of production. Again, many Slashdotters like to point out that you can create an album with a $100 mic and some pirated sequencing software, and thus music should not have production costs, but the reality is that recording studio owners and talented recording engineers and session musicians are still making a living.
As for amortizing production costs across paid downloads, many folks make the assumption that amortization is over supply -- if the track cost $10K to produce, just distribute a million copies and the per-track cost is just a penny! But amortization must actually apply to sold copies.
Lastly, something that many people don't realize is that the optimal price on the curve is the price that makes you the most profit, not the price that moves the most units. Apple recently raised the price on the more popular tracks from $0.99 to $1.29 and (perhaps counterintuitively to many Slashdotters) many tracks are actually making more money, even though unit sales have gone down. This gets into things like elasticity -- lowering the price doesn't always help, if you don't find enough new customers at the new lower price. For instance, in my case, music has almost zero elasticity for me -- if the average track price on iTunes were lowered to $0.89 or $0.69 or even $0.49, I wouldn't buy any more. Thus, I'd be a money-loser for them.
No matter what price you set, you're always going to run into somebody who claims that they won't buy until the price is $SOME_LOWER_AMOUNT. A big part of pricing strategy is understanding that not everybody can be your customer, and understanding the point of diminishing returns as you're making less and less profit for a marginal increase in sales.
Thus, for the time being, the music industry has decided that $10 is the optimal price for a CD, and that $0.69 - $1.29 is the optimal price for a track. It works for them. It won't get your business, but that's probably because they're not after your business -- the return on investment is not there.
"Personally, I've stopped purchasing/downloading music entirely. I'll start again when the money I pay for music actually goes to the artist."
What did Gandhi say about becoming the change that you seek? The best way to kill the current music industry is to show them how it can be done better. Start your own music label that relies on an all-volunteer staff, or at least a staff that will work for minimum wage or, at the very least, less money than they'd make working for a traditional record label. Just set a fair value for the percentage of each sale to be given to the artist -- say, 75% -- and find a way to get their music produced and promoted with what you have left. Then, start signing up artists who are comfortable with the level of production and promotion you can provide with an underpaid staff and a less-than-average promotional budget. It will be extremely difficult, but you just might be successful.
"When copyright is so messed up that a company is making $2 million per year on five minutes of work "composing" a 6-note tune ripped off from someone else, written by someone back in the 1890's who's been dead for over 60 years, with words written by no-one-knows-who, then it's no surprise that the public blatantly disregards it."
Most pirates I know do so because they simply would rather get the latest music for free than paying for it. And they're not pirating stuff that would be in the public domain if the copyright term were reduced to 18 years or 10 years or even one year -- the list of top-pirated tracks tends to line up quite closely with the top-selling tracks on iTunes or Amazon.
Yes, Harry Fox makes a killing licensing public performance rights. Yes, copyright laws last a long time. And, yes, lots of people (largely in the 13-24 age group) usually choose to pirate vs. purchase. But that last fact is not related to the first two.
Don't take this the wrong way, but you're making the same dangerous assumptions that many other tracker operators and file sharing enthusiasts have. The pattern unfortunately keeps repeating itself: file sharing enthusiasts put too much faith in loopholes which don't exist, or rely on the TorrentFreak/Digg/Slashdot echo chamber and get bad information about how the laws work. Then, when a ruling doesn't go their way, they claim corruption or incompetence rather than checking their assumptions.
Safe harbor provisions are one of those legal constructs that span various areas of the law (the term wasn't invented with the DMCA) and exist more or less the same in multiple legal systems. I think you're making some incorrect assumptions about safe harbors as they relate to copyright infringement which in turn are giving you the wrong impression about the feasibility of using them. Safe harbors are, by definition, easy to use, and the concerns you raise (about false claims etc.) were addressed years and years ago. In other words... lots of smart people have already sat down, discussed the concerns you raised, and dealt with them by writing sensible safe harbor provisions that work for all parties.
The reason why safe harbors are well-defined and attainable is because if you choose not to take advantage of them (as most tracker operators do not -- otherwise it would put them out of business), the penalties can be very scary. You ignore safe harbors at your peril, and "complying with safe harbors is too hard" or "complying with safe harbors because it would take all the good stuff off of my tracker site" are not acceptable defenses.
Also very interesting. Taking it at face value that you and the other fellow are correct in your interpretation of Swedish law, it raises the question of why TPB isn't raising a stink about this instead of the nebulous "bias." If it's cut and dry that the law was applied incorrectly, that's a much more black and white thing to go on. Raising a possible motive for applying the law incorrectly seems like an unnecessarily contrived way of fighting for justice.
I've read a few opinions of the verdict written by legal experts and I haven't seen the point you've raised -- can you point me to some background here -- even if it's in Swedish?
Interesting. Speaking as a disinterested party (I don't see any heroes or villains here), this seems like an appropriate closing of a loophole.
It's pretty common for new technologies to create new loopholes that the original framers of a law did not intend -- here I'm referring to the legal system in general, and not specifically copyright code or any country in particular. These loopholes tend to get closed quickly. Just as nature abhors a vacuum, law books abhor a loophole.
This is actually how laws are written. The law starts out pretty thin, and somebody does something which violates the spirit, if not the letter of the law. Then the law is strengthened, somebody finds a loophole, and the law is clarified again. Lather, rinse, repeat, and that's why law books are so huge. For instance, the California Vehicle Code was just a dozen pages long a hundred years ago; now it's more than an inch thick.
An example in the US that might be near and dear to your heart is the NET Act passed in, I believe, 1997. It imposed criminal penalties for non-commercial infringement above a certain amount -- or, rather, broadened the definition of "commercial" in this instance. And it was done for the very specific purpose of shutting down the FTP warez repositories. Such a law was not necessary before the advent of the Internet, and the government closed the FTP site loophole.
Since then, various countries have strengthened copyright code to close the P2P loophole.
Chapter 23, Section 4 of the Swedish criminal code states that if an offense can result in a prison term, and if you're complicit in the act, then you'll be held liable, too.
It's a pretty common concept that's found in legal systems all over the world, including that of the US.
I'm not sure why you mentioned that there's no copyrighted material hosted on TPB. It sounds like either you're confused about what they were convicted for, or (even worse) you're trying to throw up a straw man.
Just in case anybody is wondering if facilitating/vicarious/contributory infringement is against the law in Sweden (you already have one AC who seems to think it is not), Swedish law is very clear. Per Chapter 23, Section 4: if you're complicit in an act, you can be held liable for the act. This is a blanket clause that applies to all laws for which prison time is a possibility.
There wasn't a huge miscarriage of justice here -- they were found guilty of assisting in copyright infringement because they proudly assisted in copyright infringement. It's a bit too late for them to claim that they somehow weren't aware of the purpose of their own site. The legal system has much better bullshit detectors than many Slashdotters seem to think.
"Show me which part of Swedish law they violated."
They were found guilty of assisting in making copyrighted materials available. It's the Swedish equivalent of the "contributory copyright infringement" and "vicarious copyright infringement" laws in the USA. If you'd like more info about the particular Swedish laws, google "pirate bay verdict english translation."
It basically came down to the facts that the four defendants knew what was going on, and that each had a chance to stop it, but did not. And, of course, unlike sites like, say, Google, they dismissed safe harbors. Safe harbors shoudn't be ignored -- they're there to protect you, but if you don't take advantage of them, you risk big trouble.
"Show me the files on their site that were in violation of said law."
Huh? You know that they weren't charged with copyright infringement, right? I'm sure you know how the BitTorrent protocol works -- this wasn't a download site; it was a tracker site. What files do you mean?
"Copyright infringement was meant to apply to people using copyrighted material for commercial gain. Copyright never was meant to prevent an individual from making copies for himself, or for friends, for which he is not paid."
We should be careful of over-generalizing here. Copyright law is there to protect the rights of the creators; it's the real-world dynamics of infringement that had historically made it a for-profit activity. Non-commercial infringement has always been cause for civil action (S501 hasn't addressed intent or gain -- just the actions); non-commercial infringement above a certain threshold was made eligible for criminal prosecution in 1997.
"In today's world, friends might be located all around the globe, and you may not even know their real names - but being a member of the filesharing community makes them your friend."
I think this is recognized by even the most hard-core pirates as being a slippery slope. The argument goes that fair use doctrine generally excepts copies for friends (it does not, but that's outside scope here) so there should be no legal difference between sharing with a few friends at school vs. sharing with a million of your closest friends on BitTorrent. I believe that this defense was even tried in the original Napster case. It wasn't successful.
"RIAA makes little if any distinction between people distributing for financial gain, and people who are just sharing. The law needs to address that little oversight."
Agreed 100%, the law should be changed. More to the point, juries have the option to extract huge damages against non-commerical file-sharers. In this particular case, I believe the RIAA originally approached her to settle for their usual $3500 -- or about two bucks per song they found in her share directory. The RIAA wanted two bucks a song, the jury wanted $80K. In this crazy world, it's not the copyright holders we should be scared of... it's our peers!
"A "good" capitalist business should roll with the changes, should cater to their customer, should work with their customer, should take advantage of technology, etc."
Compare the music industry of today vs. 5 or 10 years ago. CDs cost half as much now as they did then; music at the (no coincidence) top two online stores is DRM-free, and selection is getting really, really good. This is why iTunes is the #1 music retailer: they give customers what they want. They could not have done it if the record labels hadn't come around.
Now, I acknowledge that $0.99 a track or $10 a CD still isn't low enough for you, and you won't give up your merry pirating ways until tracks are $0.25, CDs are $4.00, and musicians get 50% of the selling price. That's certainly a valid stance, but it's not accurate to say that the record labels haven't tried to meet the pirates halfway.
Lots of pirates state that they pirate because of DRM or pricing or selection; the record labels seem to have taken that at face value and given the pirates what they are asking for. Piracy is bigger than ever because, of course, some people simply want things for free. This is a fact of life; when you look at the state of the music industry, they're actually not doing that badly given the economy and the fact that the new model allows customers to buy just one or two tracks at a time when before they had to buy entire CDs.
Again, if the record labels haven't lowered prices enough for you to switch from pirate to purchasers, that's fine -- but it's not accurate to state that the labels aren't catering to customers. One of those b-school 101 lessons is that you must recognize that some people just aren't going to be your customer no matter how hard you try, and you must scale your efforts accordingly.
"We have a hilarious trial that stinks to high hell where you are fined $80,000 per song you downloaded in copyright violations."
Was it established that she downloaded the tracks in question, rather than ripping them from her CDs? In either case, it's not germane, as she was nailed for distribution, not downloading.
"In my most honest opinion, Jammie owes the record companies a couple dollars to pay for her downloaded songs. She owes something in the way of punitive damages. 24 songs, at a buck apiece, is 24 bucks. Drawing on ancient tort law, let's treble the damages, so she now owes 72 bucks. If she had been offered this deal from the get-go, her conscience might have convinced her that 72 bucks was a good deal, and paid it."
It's important to keep in mind that she was nailed for distributing, not downloading. When you use the word "damages" here I think you may be thinking in terms of downloading. For instance, if I found a way to get free songs from the iTunes or Amazon store and managed to download 24 tracks before caught but did not distribute them, then it would fit the framework you've described. But that's not what she did -- she was making them available. In this case it did not matter how the tracks got into her share directory.
The issue here is that the limits for statutory damages are a remnant of the days when large-scale distribution required one person to have a lot of resources, and thus was almost always for profit. Given the new reality of sharing a track with thousands or millions of people with just a few clicks and at very low cost, the limits for statutory damages should be scaled back immensely (less than $1,000 per work), or at the very least, a separate set of limits should apply to commercial vs. non-commercial infringement, so that the courts can still wreak serious financial harm to the folks churning out fake Windows CDs by the pallet.
I should also point out that while she was taken to court for sharing 24 songs, she had something like 1,500 tracks in her share directory. This is fitting with the RIAA's usual tactic of going after the "whales" of file sharing; if you have just a few dozen tracks in your share directory you're less liable to be caught. To use an ugly analogy, Timonthy McVeigh killed 168 people but was charged only for the murder of 11 federal agents (in addition to some other charges not relating to particular victoms). I take it that this is relatively common in the legal system; only charge them for enough to get the punishment you want.
"Okay, I should have said she was tired of having to walk to the back of the bus. My point is still valid. She had no intentions of battling through a court trial or starting a revolution. Sometimes, revolutions happen by accident."
Her actions were planned; it was no accident. She was a member of the local chapter of the NAACP and she opted to participate in the civil disobedience because Claudette Colvin wasn't an ideal specimen because of some personal details of her life. Rosa agreed that she would be a suitable "poster child" and history was made.
"One sentence- Steamboat Willie is STILL under copyright!"
Hugely ridiculous, to be sure, but not germane to the discussion. Jammie Thomas wasn't downloading 80-year-old stuff that should be in the public domain. Most slashdotters aren't pirating the old stuff, and surveys like BigChampagne's make it clear that the top most pirated music matches very closely with the top legally downloaded tracks on iTunes and the Amazon MP3 store.
If copyright limits were rescinded to the original period of (if I recall) 18 years, Mrs. Thomas would still be in violation of the law.
Big media keeps getting the law changed to push out the term length. I hold that this is effectively perpetuity, and bordering on unconstitutional. But I don't believe for a SECOND that any of us are pirating in protest of this fact, nor would we be consuming lots of 80-year-old media. Pirates want the same stuff that people are buying, and they pirate because they simply would rather not pay for it. Let's acknowledge that and move on.
"Redoing a 70s or 60s classic to fit into modern tastes? Can't do it, unless you are willing to deal with a huge studio that will rip your pants off if you're not careful."
You mean recording your own cover? That's Harry Fox; ASCAP and BMI; there are mechanical licensing fees set up so that you generally don't have to deal with record labels or negotiate on costs.
If you're referring to taking the recording and, say, doing a remix, then yes, you need to specifically get permission. However, the alternative is to create something new which you own 100%. Then (and this is the beautiful part) you can copyright it but still release it with absolutely no restrictions on copying or remixing.
If you're not particularly good at writing hit songs yourself, then your own recording may have less commercial value than a remix of a well-known recording from the 1980s. But I believe that most people reading this aren't focused on releasing stuff for commercial gain.
"You can't single-handedly get a CD (or any other product) into every retail store in the country; that's why you have an arrangement with a distributor. Likewise, if you want to sell your services to a million customers, don't try to contact them all yourself. Make an arrangement with someone else who'll help with promotion, handle the transactions, and deal with customer support in exchange for a cut."
While the concept of paying people to help you with things you don't want to or can't do is fundamental (it's well-understood by anybody who makes use of an accountant, a payroll service, or a gardener), it's this concept that's a major rationalization for piracy. Pirates profess a belief that middlemen make too much money; thus downloading it for free is correcting an economic injustice, not merely a way to save money.
The concept of spec work vs. work-for-hire is also fundamentally understood by many creative folks like graphic artists. The economics of the music and film industries practically demand spec work.
One often-overlooked feature of copyright law is that it's opt-in, and copyrighting one's work is not synonymous with selling one's work. The folks in the Pirate Party envision a world in which young people will create works without expectation of compensation per piece sold, and that other young people will seek this content out. The trouble is that there are already lots of folks who release creative works for free, and under alternative licensing (GPL, Creative Commons, etc.). The Pirate Party can have this utopia if they want it, but they'll need to change their behavior first. When you look at the most popular downloads on the tracking sites or the BigChampagne list of the top-downloaded tracks, they match up with pop culture consumption very closely. Pirates still primarily want the stuff that's distributed by big media.
I should have been more clear. When referring to "labels" I meant record labels... the folks who press and ship CDs and who deal with recordings. Publishers deal with the music and lyrics in non-recorded form.
Publishers come in all shapes and sizes. Many, many composers and lyricists are also their own one-person publishing companies. Those with less business acumen (or who simply don't want to deal with things) will make use of a publishing company, but even in these cases, the publisher takes a minority of the revenue. As you mentioned, there are a few monolithic publishing companies that handle the publishing for thousands of works (Warner-Chappell comes to mind). In a few cases, publishing companies are owned by music conglomerates which also own record labels (Sony ATV, per your example).
But regardless of a music publisher's size or ownership, they're in service to the composers and lyricists. There's little point in signing up with a publisher that takes 100% of your publishing earnings -- this was prevalent in the 1960s with the "song factories" that used the work-for-hire model, but much less so today.
You're correct that collection societies provide an opportunity for big publishing companies to make a lot of money, but I don't think it's as bad for composers and lyricists as you paint it. As mentioned, the cash split is much more favorable to the composers/lyricists than the royalties for sales of recordings, and (unlike selling CDs) it's relatively easy for writers to be their own publishers.
I'm not sure what you mean by "next to nothing." PRS represents the creative folks behind the music -- the lyricists, composers, and publishers. They get the bulk of the money (something like 80%+) with the PRS taking a bit off of the top.
If by "next to nothing" you mean that the royalty per track is low, you're right -- but this is what will give online radio a better chance of success, including a possible return of Pandora to the UK market. It's a tiny bit per track but it adds up. The economics of streaming radio preclude paying the artist a Euro per stream, but the royalty does add up quickly. If my math is right, the lyriist/composer earn about one Euro for 1,000 streaming plays. A thousand might not seem like much but when you look at how popular Internet radio is becoming in the UK, making a decent income from streaming becomes a possibility. And -- best of all -- it's money that the record label doesn't get to touch.
If by "next to nothing" you mean that artists who don't get much airplay don't get much money, and that the bulk of the money will go to the popular artists that, sadly, streaming radio listeners want to hear the most -- you're unfortunately correct. Popularity in the music world isn't necessarily based on talent. That's true for music sales and it's sadly true for airplay as well.
Who do you trust more... Michael Arrington, or Russ Garrett?
Russ' rebuttal is here. He's no PR flack... he's one of the founders and one of the original developers of Audioscrobbler.
It's very interesting that so many Slashdotters are taking the Techcrunch report at face value. Given Mr. Arrington's history with regard to responsible journalism, I'm with Russ on this one.
Arrington has last.fm in his sights for some reason. Somebody pointed out that TechCrunch takes advertising money from a last.fm competitor. I don't think it's as simple as that, but Arrington has an agenda here, and I don't think it's the noble pursuit of truth.
"BA Dave doesn't charge for his music, but did in fact pay for his backing tracks with an agreement that allows their reuse for non-commercial purposes without additional fees."
Somebody else pointed out that he gets his backing tracks from karaoke-version.com -- is this correct?
The karaoke-version.com licensing allows for private; non-commercial use; ie. not much more than having a karaoke party in your home. Making recordings and distributing them isn't covered as the licensing -- as the FAQ on the site points out, you need the additional permission of a licensing organization (ASCAP/BMI in this case). Unfortunately, the fact that he doesn't charge for his tracks doesn't change this -- he's recording them and distributing them.
ASCAP/BMI contracts generally aren't pass-through -- see also the situations where businesses must get their own license to play a radio station which has its own license. The radio station's license isn't a pass-through.
Buying printed sheet music works the same way: the printing company pays a license fee, but if you want to record your own version of the song using the sheet music, you'll have to get a license of your own.
I doubt that BA Dave's situation is different than this -- as stated above, licensing generally isn't pass-through. If you know something I don't about the contract he signed with the provider of his backing tracks, let me know.
Agreed with you that ASCAP is acting like a pimp. That's a colorful way of putting it, but it's pretty accurate.
I should clarify that I don't subscribe to the zeitgeist. I'm particularly in favor of mechanisms that allow artists to get money without being dependent on record companies, but -- and here's where I break with many Slashdotters -- I believe that artists should be able to collect on that money and enforce those rights. The honor system doesn't work particularly well here -- e.g. I don't think BA Dave would have voluntarily sent money to songwriters if ASCAP didn't call him out.
"'we' want artists, authors and others to have a copyright. but those 'we' want this copyright to be reasonable."
"Reasonable" is hugely subjective. I believe that the right of songwriters and lyricists to collect licensing fees is reasonable. I'll concede that most people here may not agree with me.
"that includes reasonable terms on time and reuse restrictions."
Agreed that the ongoing copyright term extensions are troubling. Big media would, of course, like perpetual copyright, but that would be unconstitutional. However, by pushing out the deadline each time Mickey Mouse is in danger of going into the public domain, they're effectively perpetual. This should be stopped.
At any rate, that's not relevant to this issue. BA Dave is largely using melodies which have been written within the past few decades. Terms would have to be drastically scaled back in order to give him a free pass here.
As for re-use restrictions: again I'll concede that while I think ASCAP/BMI licensing arrengement is reasonable; you probably don't agree.
I checked out the FAQ on that site. They write (emphasis mine):
Use in public events
We are happy to allow the use of our soundtracks in public places and during events, commercial or not. However, and for your information, we'd like to remind you that you must receive an official agreement from your national music rights management office (MCPS in UK for example) to be legally compliant.
If the event is private and non-commercial, use of soundtracks is, of course, allowed and not restricted.
Other use (Recording/Streaming/Broadcasting...)
Recording rights of our soundtracks (Whether it's on a specific media or not) is not included in the price.
Prior to any recording of one of our soundtracks, it is mandatory to file for a written authorisation. Any use of any of our available tracks, without prior agreement, is a violation in regards of French Law dated July 3-1985 and International Conventions. Be aware that Moral Copyright allows Songwriters/Composers to forbid any re-use of his work if he finds this use doesn't respect the original design.
I'm not sure about that "moral copyright" part (it may relate to jurisdictions outside the US) but the rest matches my understanding: karaoke-versions.com licenses for private, in-home use, but if you want to broadcast it or record it, you need to get additional authorization -- ie. ASCAP or BMI in the US.
This appears to contradict your statement. Do you have a more comprehensive contract with karaoke-versions.com which allows for recording and broadcast?
I think you (and others) may have been tripped up by the "the law is pretty clearly on his side" text in the summary. The submitter apparently took what BA Dave wrote at face value.
What BA Dave apparently doesn't understand is that 2Live Crew ended up paying royalties.
Thankfully, you can create a parody without getting permission from the original author -- the law gives us this right, although court cases usually come down to what's defined as a parody.
However (and this is the crucial point that BA Dave and the submitter missed), if you use a melody written by somebody else, then you must pay a license. This is accomplished through what's known as a "blanket license" or a "mechanical license," which means that you need not get explicit permission from the particular songwriter.
I think the zeitgeist on Slashdot is this: we dislike record labels, but we like artists. We want artists to make money directly -- and that's why actions like pirating the music and then "going to a concert" or "buying a t-shirt" are acceptable, as more money goes to the artist.
In short, we like it when artists make money directly, without record labels being involved.
And that's exactly what ASCAP is -- a collective of songwriters and lyricists, creating a revenue stream that's largely untouched by the record labels. It provides artists a way to do what they love and get money for it, even if they're not signed to a label or selling CDs.
We want them to have rights. We simply don't want them to get all uppity and enforce those rights. You artists can have all the rights you want, but if claiming your rights gets in the way of us doing something with your music without paying you -- such as recording a new song using your melody -- then the proper response is to sit down, shut up, and know your place.
Slashdot Mirror
"So, since it's no longer difficult to make & distribute copies of music, why are the companies that make up the RIAA still charging the same prices?"
As you correctly point out below, CD prices are in freefall. The $10 CDs today were $18 in 2000 - that's $23 in 2009 bucks. It was also $18 in 1985 -- if record labels were still charging the same prices, CDs would cost $36 today.
"Why is Walmart selling CDs for $10 when I can get the same songs for free? Why is Apple selling songs for $1 when I can get the same songs for free?"
A couple of points to understand here; I'll try to be as succinct as possible.
First, music does have a certain per-piece cost. Even digital downloads -- the costs of production are amortized across expected sales. I know this is a brain-boggler for many Slashdotters, but trust me, it's correct.
In the case of that CD you have royalties (folks often forget the mechanicals which can be up to $0.16 per track -- that's defined by law and doesn't include the negotiated performance royalties), the pressing and shipping costs, and the costs of production. Again, many Slashdotters like to point out that you can create an album with a $100 mic and some pirated sequencing software, and thus music should not have production costs, but the reality is that recording studio owners and talented recording engineers and session musicians are still making a living.
As for amortizing production costs across paid downloads, many folks make the assumption that amortization is over supply -- if the track cost $10K to produce, just distribute a million copies and the per-track cost is just a penny! But amortization must actually apply to sold copies.
Lastly, something that many people don't realize is that the optimal price on the curve is the price that makes you the most profit, not the price that moves the most units. Apple recently raised the price on the more popular tracks from $0.99 to $1.29 and (perhaps counterintuitively to many Slashdotters) many tracks are actually making more money, even though unit sales have gone down. This gets into things like elasticity -- lowering the price doesn't always help, if you don't find enough new customers at the new lower price. For instance, in my case, music has almost zero elasticity for me -- if the average track price on iTunes were lowered to $0.89 or $0.69 or even $0.49, I wouldn't buy any more. Thus, I'd be a money-loser for them.
No matter what price you set, you're always going to run into somebody who claims that they won't buy until the price is $SOME_LOWER_AMOUNT. A big part of pricing strategy is understanding that not everybody can be your customer, and understanding the point of diminishing returns as you're making less and less profit for a marginal increase in sales.
Thus, for the time being, the music industry has decided that $10 is the optimal price for a CD, and that $0.69 - $1.29 is the optimal price for a track. It works for them. It won't get your business, but that's probably because they're not after your business -- the return on investment is not there.
"Personally, I've stopped purchasing/downloading music entirely. I'll start again when the money I pay for music actually goes to the artist."
What did Gandhi say about becoming the change that you seek? The best way to kill the current music industry is to show them how it can be done better. Start your own music label that relies on an all-volunteer staff, or at least a staff that will work for minimum wage or, at the very least, less money than they'd make working for a traditional record label. Just set a fair value for the percentage of each sale to be given to the artist -- say, 75% -- and find a way to get their music produced and promoted with what you have left. Then, start signing up artists who are comfortable with the level of production and promotion you can provide with an underpaid staff and a less-than-average promotional budget. It will be extremely difficult, but you just might be successful.
"When copyright is so messed up that a company is making $2 million per year on five minutes of work "composing" a 6-note tune ripped off from someone else, written by someone back in the 1890's who's been dead for over 60 years, with words written by no-one-knows-who, then it's no surprise that the public blatantly disregards it."
Most pirates I know do so because they simply would rather get the latest music for free than paying for it. And they're not pirating stuff that would be in the public domain if the copyright term were reduced to 18 years or 10 years or even one year -- the list of top-pirated tracks tends to line up quite closely with the top-selling tracks on iTunes or Amazon.
Yes, Harry Fox makes a killing licensing public performance rights. Yes, copyright laws last a long time. And, yes, lots of people (largely in the 13-24 age group) usually choose to pirate vs. purchase. But that last fact is not related to the first two.
Don't take this the wrong way, but you're making the same dangerous assumptions that many other tracker operators and file sharing enthusiasts have. The pattern unfortunately keeps repeating itself: file sharing enthusiasts put too much faith in loopholes which don't exist, or rely on the TorrentFreak/Digg/Slashdot echo chamber and get bad information about how the laws work. Then, when a ruling doesn't go their way, they claim corruption or incompetence rather than checking their assumptions.
Safe harbor provisions are one of those legal constructs that span various areas of the law (the term wasn't invented with the DMCA) and exist more or less the same in multiple legal systems. I think you're making some incorrect assumptions about safe harbors as they relate to copyright infringement which in turn are giving you the wrong impression about the feasibility of using them. Safe harbors are, by definition, easy to use, and the concerns you raise (about false claims etc.) were addressed years and years ago. In other words... lots of smart people have already sat down, discussed the concerns you raised, and dealt with them by writing sensible safe harbor provisions that work for all parties.
The reason why safe harbors are well-defined and attainable is because if you choose not to take advantage of them (as most tracker operators do not -- otherwise it would put them out of business), the penalties can be very scary. You ignore safe harbors at your peril, and "complying with safe harbors is too hard" or "complying with safe harbors because it would take all the good stuff off of my tracker site" are not acceptable defenses.
Also very interesting. Taking it at face value that you and the other fellow are correct in your interpretation of Swedish law, it raises the question of why TPB isn't raising a stink about this instead of the nebulous "bias." If it's cut and dry that the law was applied incorrectly, that's a much more black and white thing to go on. Raising a possible motive for applying the law incorrectly seems like an unnecessarily contrived way of fighting for justice.
I've read a few opinions of the verdict written by legal experts and I haven't seen the point you've raised -- can you point me to some background here -- even if it's in Swedish?
Interesting. Speaking as a disinterested party (I don't see any heroes or villains here), this seems like an appropriate closing of a loophole.
It's pretty common for new technologies to create new loopholes that the original framers of a law did not intend -- here I'm referring to the legal system in general, and not specifically copyright code or any country in particular. These loopholes tend to get closed quickly. Just as nature abhors a vacuum, law books abhor a loophole.
This is actually how laws are written. The law starts out pretty thin, and somebody does something which violates the spirit, if not the letter of the law. Then the law is strengthened, somebody finds a loophole, and the law is clarified again. Lather, rinse, repeat, and that's why law books are so huge. For instance, the California Vehicle Code was just a dozen pages long a hundred years ago; now it's more than an inch thick.
An example in the US that might be near and dear to your heart is the NET Act passed in, I believe, 1997. It imposed criminal penalties for non-commercial infringement above a certain amount -- or, rather, broadened the definition of "commercial" in this instance. And it was done for the very specific purpose of shutting down the FTP warez repositories. Such a law was not necessary before the advent of the Internet, and the government closed the FTP site loophole.
Since then, various countries have strengthened copyright code to close the P2P loophole.
Chapter 23, Section 4 of the Swedish criminal code states that if an offense can result in a prison term, and if you're complicit in the act, then you'll be held liable, too.
It's a pretty common concept that's found in legal systems all over the world, including that of the US.
I'm not sure why you mentioned that there's no copyrighted material hosted on TPB. It sounds like either you're confused about what they were convicted for, or (even worse) you're trying to throw up a straw man.
Just in case anybody is wondering if facilitating/vicarious/contributory infringement is against the law in Sweden (you already have one AC who seems to think it is not), Swedish law is very clear. Per Chapter 23, Section 4: if you're complicit in an act, you can be held liable for the act. This is a blanket clause that applies to all laws for which prison time is a possibility.
There wasn't a huge miscarriage of justice here -- they were found guilty of assisting in copyright infringement because they proudly assisted in copyright infringement. It's a bit too late for them to claim that they somehow weren't aware of the purpose of their own site. The legal system has much better bullshit detectors than many Slashdotters seem to think.
"Show me which part of Swedish law they violated."
They were found guilty of assisting in making copyrighted materials available. It's the Swedish equivalent of the "contributory copyright infringement" and "vicarious copyright infringement" laws in the USA. If you'd like more info about the particular Swedish laws, google "pirate bay verdict english translation."
It basically came down to the facts that the four defendants knew what was going on, and that each had a chance to stop it, but did not. And, of course, unlike sites like, say, Google, they dismissed safe harbors. Safe harbors shoudn't be ignored -- they're there to protect you, but if you don't take advantage of them, you risk big trouble.
"Show me the files on their site that were in violation of said law."
Huh? You know that they weren't charged with copyright infringement, right? I'm sure you know how the BitTorrent protocol works -- this wasn't a download site; it was a tracker site. What files do you mean?
"Copyright infringement was meant to apply to people using copyrighted material for commercial gain. Copyright never was meant to prevent an individual from making copies for himself, or for friends, for which he is not paid."
We should be careful of over-generalizing here. Copyright law is there to protect the rights of the creators; it's the real-world dynamics of infringement that had historically made it a for-profit activity. Non-commercial infringement has always been cause for civil action (S501 hasn't addressed intent or gain -- just the actions); non-commercial infringement above a certain threshold was made eligible for criminal prosecution in 1997.
"In today's world, friends might be located all around the globe, and you may not even know their real names - but being a member of the filesharing community makes them your friend."
I think this is recognized by even the most hard-core pirates as being a slippery slope. The argument goes that fair use doctrine generally excepts copies for friends (it does not, but that's outside scope here) so there should be no legal difference between sharing with a few friends at school vs. sharing with a million of your closest friends on BitTorrent. I believe that this defense was even tried in the original Napster case. It wasn't successful.
"RIAA makes little if any distinction between people distributing for financial gain, and people who are just sharing. The law needs to address that little oversight."
Agreed 100%, the law should be changed. More to the point, juries have the option to extract huge damages against non-commerical file-sharers. In this particular case, I believe the RIAA originally approached her to settle for their usual $3500 -- or about two bucks per song they found in her share directory. The RIAA wanted two bucks a song, the jury wanted $80K. In this crazy world, it's not the copyright holders we should be scared of... it's our peers!
"A "good" capitalist business should roll with the changes, should cater to their customer, should work with their customer, should take advantage of technology, etc."
Compare the music industry of today vs. 5 or 10 years ago. CDs cost half as much now as they did then; music at the (no coincidence) top two online stores is DRM-free, and selection is getting really, really good. This is why iTunes is the #1 music retailer: they give customers what they want. They could not have done it if the record labels hadn't come around.
Now, I acknowledge that $0.99 a track or $10 a CD still isn't low enough for you, and you won't give up your merry pirating ways until tracks are $0.25, CDs are $4.00, and musicians get 50% of the selling price. That's certainly a valid stance, but it's not accurate to say that the record labels haven't tried to meet the pirates halfway.
Lots of pirates state that they pirate because of DRM or pricing or selection; the record labels seem to have taken that at face value and given the pirates what they are asking for. Piracy is bigger than ever because, of course, some people simply want things for free. This is a fact of life; when you look at the state of the music industry, they're actually not doing that badly given the economy and the fact that the new model allows customers to buy just one or two tracks at a time when before they had to buy entire CDs.
Again, if the record labels haven't lowered prices enough for you to switch from pirate to purchasers, that's fine -- but it's not accurate to state that the labels aren't catering to customers. One of those b-school 101 lessons is that you must recognize that some people just aren't going to be your customer no matter how hard you try, and you must scale your efforts accordingly.
"We have a hilarious trial that stinks to high hell where you are fined $80,000 per song you downloaded in copyright violations."
Was it established that she downloaded the tracks in question, rather than ripping them from her CDs? In either case, it's not germane, as she was nailed for distribution, not downloading.
"In my most honest opinion, Jammie owes the record companies a couple dollars to pay for her downloaded songs. She owes something in the way of punitive damages. 24 songs, at a buck apiece, is 24 bucks. Drawing on ancient tort law, let's treble the damages, so she now owes 72 bucks. If she had been offered this deal from the get-go, her conscience might have convinced her that 72 bucks was a good deal, and paid it."
It's important to keep in mind that she was nailed for distributing, not downloading. When you use the word "damages" here I think you may be thinking in terms of downloading. For instance, if I found a way to get free songs from the iTunes or Amazon store and managed to download 24 tracks before caught but did not distribute them, then it would fit the framework you've described. But that's not what she did -- she was making them available. In this case it did not matter how the tracks got into her share directory.
The issue here is that the limits for statutory damages are a remnant of the days when large-scale distribution required one person to have a lot of resources, and thus was almost always for profit. Given the new reality of sharing a track with thousands or millions of people with just a few clicks and at very low cost, the limits for statutory damages should be scaled back immensely (less than $1,000 per work), or at the very least, a separate set of limits should apply to commercial vs. non-commercial infringement, so that the courts can still wreak serious financial harm to the folks churning out fake Windows CDs by the pallet.
I should also point out that while she was taken to court for sharing 24 songs, she had something like 1,500 tracks in her share directory. This is fitting with the RIAA's usual tactic of going after the "whales" of file sharing; if you have just a few dozen tracks in your share directory you're less liable to be caught. To use an ugly analogy, Timonthy McVeigh killed 168 people but was charged only for the murder of 11 federal agents (in addition to some other charges not relating to particular victoms). I take it that this is relatively common in the legal system; only charge them for enough to get the punishment you want.
"Okay, I should have said she was tired of having to walk to the back of the bus. My point is still valid. She had no intentions of battling through a court trial or starting a revolution. Sometimes, revolutions happen by accident."
Her actions were planned; it was no accident. She was a member of the local chapter of the NAACP and she opted to participate in the civil disobedience because Claudette Colvin wasn't an ideal specimen because of some personal details of her life. Rosa agreed that she would be a suitable "poster child" and history was made.
"One sentence- Steamboat Willie is STILL under copyright!"
Hugely ridiculous, to be sure, but not germane to the discussion. Jammie Thomas wasn't downloading 80-year-old stuff that should be in the public domain. Most slashdotters aren't pirating the old stuff, and surveys like BigChampagne's make it clear that the top most pirated music matches very closely with the top legally downloaded tracks on iTunes and the Amazon MP3 store.
If copyright limits were rescinded to the original period of (if I recall) 18 years, Mrs. Thomas would still be in violation of the law.
Big media keeps getting the law changed to push out the term length. I hold that this is effectively perpetuity, and bordering on unconstitutional. But I don't believe for a SECOND that any of us are pirating in protest of this fact, nor would we be consuming lots of 80-year-old media. Pirates want the same stuff that people are buying, and they pirate because they simply would rather not pay for it. Let's acknowledge that and move on.
"Redoing a 70s or 60s classic to fit into modern tastes? Can't do it, unless you are willing to deal with a huge studio that will rip your pants off if you're not careful."
You mean recording your own cover? That's Harry Fox; ASCAP and BMI; there are mechanical licensing fees set up so that you generally don't have to deal with record labels or negotiate on costs.
If you're referring to taking the recording and, say, doing a remix, then yes, you need to specifically get permission. However, the alternative is to create something new which you own 100%. Then (and this is the beautiful part) you can copyright it but still release it with absolutely no restrictions on copying or remixing.
If you're not particularly good at writing hit songs yourself, then your own recording may have less commercial value than a remix of a well-known recording from the 1980s. But I believe that most people reading this aren't focused on releasing stuff for commercial gain.
"You can't single-handedly get a CD (or any other product) into every retail store in the country; that's why you have an arrangement with a distributor. Likewise, if you want to sell your services to a million customers, don't try to contact them all yourself. Make an arrangement with someone else who'll help with promotion, handle the transactions, and deal with customer support in exchange for a cut."
While the concept of paying people to help you with things you don't want to or can't do is fundamental (it's well-understood by anybody who makes use of an accountant, a payroll service, or a gardener), it's this concept that's a major rationalization for piracy. Pirates profess a belief that middlemen make too much money; thus downloading it for free is correcting an economic injustice, not merely a way to save money.
The concept of spec work vs. work-for-hire is also fundamentally understood by many creative folks like graphic artists. The economics of the music and film industries practically demand spec work.
One often-overlooked feature of copyright law is that it's opt-in, and copyrighting one's work is not synonymous with selling one's work. The folks in the Pirate Party envision a world in which young people will create works without expectation of compensation per piece sold, and that other young people will seek this content out. The trouble is that there are already lots of folks who release creative works for free, and under alternative licensing (GPL, Creative Commons, etc.). The Pirate Party can have this utopia if they want it, but they'll need to change their behavior first. When you look at the most popular downloads on the tracking sites or the BigChampagne list of the top-downloaded tracks, they match up with pop culture consumption very closely. Pirates still primarily want the stuff that's distributed by big media.
I should have been more clear. When referring to "labels" I meant record labels... the folks who press and ship CDs and who deal with recordings. Publishers deal with the music and lyrics in non-recorded form.
Publishers come in all shapes and sizes. Many, many composers and lyricists are also their own one-person publishing companies. Those with less business acumen (or who simply don't want to deal with things) will make use of a publishing company, but even in these cases, the publisher takes a minority of the revenue. As you mentioned, there are a few monolithic publishing companies that handle the publishing for thousands of works (Warner-Chappell comes to mind). In a few cases, publishing companies are owned by music conglomerates which also own record labels (Sony ATV, per your example).
But regardless of a music publisher's size or ownership, they're in service to the composers and lyricists. There's little point in signing up with a publisher that takes 100% of your publishing earnings -- this was prevalent in the 1960s with the "song factories" that used the work-for-hire model, but much less so today.
You're correct that collection societies provide an opportunity for big publishing companies to make a lot of money, but I don't think it's as bad for composers and lyricists as you paint it. As mentioned, the cash split is much more favorable to the composers/lyricists than the royalties for sales of recordings, and (unlike selling CDs) it's relatively easy for writers to be their own publishers.
I'm not sure what you mean by "next to nothing." PRS represents the creative folks behind the music -- the lyricists, composers, and publishers. They get the bulk of the money (something like 80%+) with the PRS taking a bit off of the top.
If by "next to nothing" you mean that the royalty per track is low, you're right -- but this is what will give online radio a better chance of success, including a possible return of Pandora to the UK market. It's a tiny bit per track but it adds up. The economics of streaming radio preclude paying the artist a Euro per stream, but the royalty does add up quickly. If my math is right, the lyriist/composer earn about one Euro for 1,000 streaming plays. A thousand might not seem like much but when you look at how popular Internet radio is becoming in the UK, making a decent income from streaming becomes a possibility. And -- best of all -- it's money that the record label doesn't get to touch.
If by "next to nothing" you mean that artists who don't get much airplay don't get much money, and that the bulk of the money will go to the popular artists that, sadly, streaming radio listeners want to hear the most -- you're unfortunately correct. Popularity in the music world isn't necessarily based on talent. That's true for music sales and it's sadly true for airplay as well.
Who do you trust more... Michael Arrington, or Russ Garrett?
Russ' rebuttal is here. He's no PR flack... he's one of the founders and one of the original developers of Audioscrobbler.
It's very interesting that so many Slashdotters are taking the Techcrunch report at face value. Given Mr. Arrington's history with regard to responsible journalism, I'm with Russ on this one.
Arrington has last.fm in his sights for some reason. Somebody pointed out that TechCrunch takes advertising money from a last.fm competitor. I don't think it's as simple as that, but Arrington has an agenda here, and I don't think it's the noble pursuit of truth.
Yup, the first 3D Blaster. Also known for its packaging which integrated lenticular printing -- when you rotated the box, the image appeared to move.
Fun times.
"BA Dave doesn't charge for his music, but did in fact pay for his backing tracks with an agreement that allows their reuse for non-commercial purposes without additional fees."
Somebody else pointed out that he gets his backing tracks from karaoke-version.com -- is this correct?
The karaoke-version.com licensing allows for private; non-commercial use; ie. not much more than having a karaoke party in your home. Making recordings and distributing them isn't covered as the licensing -- as the FAQ on the site points out, you need the additional permission of a licensing organization (ASCAP/BMI in this case). Unfortunately, the fact that he doesn't charge for his tracks doesn't change this -- he's recording them and distributing them.
ASCAP/BMI contracts generally aren't pass-through -- see also the situations where businesses must get their own license to play a radio station which has its own license. The radio station's license isn't a pass-through.
Buying printed sheet music works the same way: the printing company pays a license fee, but if you want to record your own version of the song using the sheet music, you'll have to get a license of your own.
I doubt that BA Dave's situation is different than this -- as stated above, licensing generally isn't pass-through. If you know something I don't about the contract he signed with the provider of his backing tracks, let me know.
Agreed with you that ASCAP is acting like a pimp. That's a colorful way of putting it, but it's pretty accurate.
"i think your viewpoint is quite sad."
I should clarify that I don't subscribe to the zeitgeist. I'm particularly in favor of mechanisms that allow artists to get money without being dependent on record companies, but -- and here's where I break with many Slashdotters -- I believe that artists should be able to collect on that money and enforce those rights. The honor system doesn't work particularly well here -- e.g. I don't think BA Dave would have voluntarily sent money to songwriters if ASCAP didn't call him out.
"'we' want artists, authors and others to have a copyright. but those 'we' want this copyright to be reasonable."
"Reasonable" is hugely subjective. I believe that the right of songwriters and lyricists to collect licensing fees is reasonable. I'll concede that most people here may not agree with me.
"that includes reasonable terms on time and reuse restrictions."
Agreed that the ongoing copyright term extensions are troubling. Big media would, of course, like perpetual copyright, but that would be unconstitutional. However, by pushing out the deadline each time Mickey Mouse is in danger of going into the public domain, they're effectively perpetual. This should be stopped.
At any rate, that's not relevant to this issue. BA Dave is largely using melodies which have been written within the past few decades. Terms would have to be drastically scaled back in order to give him a free pass here.
As for re-use restrictions: again I'll concede that while I think ASCAP/BMI licensing arrengement is reasonable; you probably don't agree.
I checked out the FAQ on that site. They write (emphasis mine):
Use in public events
We are happy to allow the use of our soundtracks in public places and during events, commercial or not. However, and for your information, we'd like to remind you that you must receive an official agreement from your national music rights management office (MCPS in UK for example) to be legally compliant.
If the event is private and non-commercial, use of soundtracks is, of course, allowed and not restricted.
Other use (Recording/Streaming/Broadcasting...)
Recording rights of our soundtracks (Whether it's on a specific media or not) is not included in the price.
Prior to any recording of one of our soundtracks, it is mandatory to file for a written authorisation. Any use of any of our available tracks, without prior agreement, is a violation in regards of French Law dated July 3-1985 and International Conventions. Be aware that Moral Copyright allows Songwriters/Composers to forbid any re-use of his work if he finds this use doesn't respect the original design.
I'm not sure about that "moral copyright" part (it may relate to jurisdictions outside the US) but the rest matches my understanding: karaoke-versions.com licenses for private, in-home use, but if you want to broadcast it or record it, you need to get additional authorization -- ie. ASCAP or BMI in the US.
This appears to contradict your statement. Do you have a more comprehensive contract with karaoke-versions.com which allows for recording and broadcast?
There sure are, but that's not germain here.
I think you (and others) may have been tripped up by the "the law is pretty clearly on his side" text in the summary. The submitter apparently took what BA Dave wrote at face value.
What BA Dave apparently doesn't understand is that 2Live Crew ended up paying royalties.
Thankfully, you can create a parody without getting permission from the original author -- the law gives us this right, although court cases usually come down to what's defined as a parody.
However (and this is the crucial point that BA Dave and the submitter missed), if you use a melody written by somebody else, then you must pay a license. This is accomplished through what's known as a "blanket license" or a "mechanical license," which means that you need not get explicit permission from the particular songwriter.
Very well put.
I think the zeitgeist on Slashdot is this: we dislike record labels, but we like artists. We want artists to make money directly -- and that's why actions like pirating the music and then "going to a concert" or "buying a t-shirt" are acceptable, as more money goes to the artist.
In short, we like it when artists make money directly, without record labels being involved.
And that's exactly what ASCAP is -- a collective of songwriters and lyricists, creating a revenue stream that's largely untouched by the record labels. It provides artists a way to do what they love and get money for it, even if they're not signed to a label or selling CDs.
We want them to have rights. We simply don't want them to get all uppity and enforce those rights. You artists can have all the rights you want, but if claiming your rights gets in the way of us doing something with your music without paying you -- such as recording a new song using your melody -- then the proper response is to sit down, shut up, and know your place.
It's quite sad, really.