Thursday, January 30, 2003

The posting of anything by Harry Shearer is almost certain to generate a response. This time, it came from Warren in LA. Keep in mind, Warren's in the entertainment biz, so he has more background then most in this debate over digital rights. For Harry's comments, see the post further down this page. I'll respond to Warren bit by bit.

Warren writes: As for Mr. Shearer's bizarre comments, practically every sentence is inane or at the very least, born of a twisted logic.


He speaks of the customer's "right to enjoy, copy, and move the artifacts he or she "buys."" Maybe it's me, but I don't remember that part of the Constitution. Copyright law is centuries old -- if something is copyrighted material, duplication for purposes of distribution is illegal. It's true of books, newspaper articles, and recorded performances.

A common ruse when faced with a complex, modern issue is to go back to some ancient text and then say, "I don't see it mentioned in the Constitution, Bible, Bill of Rights, Magna Carta, etc, etc." The tactic is a red herring. Although copyright law has existed since the 1600s, it's modern applications have been established more recently via new laws and court cases (often due to the push of technology). I'm pretty sure - though I can't find the specific case right now - one modern addition confirmed the rights of people who properly purchase some piece of media to make a copy of that media for his or her own personal use.

The classic example is someone who buys a musical record and then makes a cassette recording of that some record so that they can hear it in their car when they choose. Without such protection, blank tapes would not be sold nor would audio recording devices of any kind. VCR/TIVO would not be sold with the ability to record TV signals (all copyrighted, yes?). Interestingly, many kinds of recording tape and devises include a user tax to pay various entertainment industries for the copying everyone knows will occur with that machine (Lord know artists never see a meaty slice of that pie). If industries are so willing to accept the funds generated by that tax, I offer that they are essentially okaying the actions. It's kind of like accepting the monies of a contract - you can't cash the checks and then fight the terms. It's all or nothing.

BTW - consumers are also allowed to dispose of owned media as they choose, including resale of the item. Otherwise, we'd have no used CD shops.

Oh, one other thing - the word "copyright" doesn't appear in the Constitution either.

As Warren rightly notes, duplication for the purposes of distribution is illegal. Agreed there, and I don't think Harry would disagree either. Of course, there's also the reality of our digital age - has anyone with a CD burner not ripped a copy of CD for a friend? Is that distribution? Yeah, we're all guilty.

Beyond that, it's immoral, it's stealing. Real human beings (not ever-so-hateful media corporations) make music and films because it's their job, and duplicating them or using duplicates instead of the real thing takes real money out of their real pockets. And most of these people don't have mansions in Beverly Hills, and they never will under Shearer's thinking. Perhaps that's how he wants it.

Socialist innuendo aside - as somebody who has created (copyrighted) music for a living and knows that industry pretty well, I can tell you that corporations do in fact make music. They hire people to write and record songs, they pat them on the back and put their names on the covers, but the lion's share (or all) of dollars generated into the company's pocket, not the artist's. As far as the label is concerned, the company owns the work. Bill Nelson (of 70s group Be Bop Deluxe) recently wrote in his blog that he still hasn't seen dollar one from EMI for the many Be Bop Deluxe records released (and re-released and re-released again) over the years. He also can't do anything about it because the company is simply too big to sue. It would bankrupt him. Record companies know that, so they continue to rip off artists.

Dollar for dollar, I'd say record companies have stolen far more money from musicians than file sharing ever has or will.

He goes on to chide the entertainment industry for its policy of "sue the customer." Of course, they're not suing the customer -- they're suing the non-customer, the person who won't pay for music or a movie, but downloads it for free.

Semantics. Maybe "suing the fan" would be better. Those guys in the black t-shirts downloading Metallica mp3s were certainly fans of the band likely past customers. But after Lars and the boys went after them, I'd guess some dropped the group. The rest probably remain fans and customers too. So I don't think Harry's too far off on his logic here.

And his proposed solution is the most laughable of all: to market to that segment of the population with more money than time. Does he really think that a music industry geared to people over 30 would be one worth having? Does he really endorse the death of rock and roll, that idiom so historically linked to the yearnings and ambitions of teenagers?

Agreed...partially. There is a much older and vital consumer segment of the population that companies ignore. Warren and I are both part of that demographic. I'd say a huge chunk of rock recordings (especially those super-profitable catalog releases) are purchased by this older segment. But no, an industry like that can't ignore their meat and potato youth market. How else would the world find the next Brittany?

Really, Harry's primary suggestion is one Republicans like Warren should love - stop asking the government for help. The government has already perverted copyright law by the many extensions they've tacked on. Copyright was developed not only to protect the creator and purchaser of original works, but also to make sure that after a period of time, works flowed back into the public domain, refreshing the well from which more inspiration could flow. From the Association of Research Libraries Timeline of Copyright Law:

The 1710 act established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (fourteen years, and renewable for fourteen more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use.

Currently, US copyright law is something like 75 years beyond the death of the author. Companies like Disney want even more, as they're terrified of lost royalties should The Rat end up in public domain (which, by all rights, is where it should be right now). The fact that Disney made much of it's fortune exploiting older public domain works for which they paid nothing is something they don't like to bring up very much.

Here's the thing: I download music. I use Limewire to check out a track or three of an artist I am interested in, especially in the case of music that is not traditionally radio-friendly. If I like what I hear, I buy the CD. If I don't, I trash it. This process has helped me find the Vines, as well as saved me 15 bucks on a Norah Jones album. (The Vines' "Highly Evolved" by the way, is my favorite album of the last 10 years.) There is a responsible way to use downloading, and my friends in the music industry heartily endorse it.

Here's the real thing - white-hat hacker logic aside, you are stealing music and ripping off somebody when you download music for free. To the record companies currently arguing this point, it makes no difference that you might go and purchase a CD based on your downloads. In their minds, they've lost sales of Norah Jones and others because you got them via file sharing. You should have been required to pay $15 to check out each CD (and if record companies had their way, you wouldn't have been able to resell the bad CDs on either). You want to download music? Join or something like it.

Mind you, I agree with your use of file sharing and downloading. But that fact is, record companies are years behind new technologies and and they're running scared, trying to herd cats at this point. Had they been smart, they would have made it super easy for people to download music and accepted the fact that the distribution business was changing. Instead, they've fought tooth and nail because they knew once distribution became computerized, a guy like Bill Nelson could simply request the download numbers and demand payments of royalties (which is what I did to my former CD distributor with Soundscan info). As long as record companies can hide sales on their books with bogus expenses and returns, they own and operate the bank.

I can't say I know the solution but we're at a turning point in media history. Technology has made ownership of media a curious thing - are we buyers or renters? Can Microsoft set my software to expire after 2 years and force me to upgrade to the new version? Will I soon purchase a number of listens of song instead of the recording itself? Will hackers figure out how to bypass all these restrictions and let information be free? When it comes to technology, I think people are smarter than companies, so I'm willing to let this play out for a while and see what solutions/problems arise.

It's a fun time, no?

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