The Sound of Lawsuits

New at Reason: Nick Gillespie rules against the music industry's latest effort to sue its way back to profitability.

Comments

[Anonymous]

The less output from Metallica the better. If there was ever a band that rehashed the same tunes over and over and over while still functioning as a band, it's those pricks.

Isn't is interesting how Elvis Costello's output has become more boring as his frequency of output has decreased?

More importantly though, I'm sick of 70+ minute CD's. Most artists are lucky if they can create 35 good minutes of music in one creative burst, they'd be better off making shorter albums with slightly more frequency than spewing out everything they have at once in five-year intervals.

[Mo]

I can't believe you're advocating increased frequency from bands today. I have a better solution for music companies. Bring back the single, but stop charging $8 for one.

[Businesspundit]

For some reason, the entertainment industry has always been slow to update their business model based on new technologies and they have been chronically unresponsive to consumer desires. People have been able to duplicate music for years. I have about 20 tapes at home that I dubbed off someone else. Sure it is easier with MP3s and file sharing, but the music companies should have embraced it long ago and used it to their advantage instead of suing.

[Brad S]

I'm usually sympathetic to the intellectual property argument, but in the case of the recording industry, there are at least three problems:

1. The big money for recording artists is in touring. It would be entirely possible for an artist to basically give away his/her music over the Internet and still gross millions of dollars with a good tour. In fact, a very viable strategy is to mass market one's music to as wide an audience as possible using the technologies availabe on the Internet, and then sell them something that they can't get via the Internet or any other recorded means, which is a GOOD LIVE SHOW. Many artists have already had success with this model, and I believe it is the business model of the future in music.

2. The technology to share music has been in place for well over two decades in the form of cassette tapes. Cassette tapes enabled listeners to share music with their friends or their neighbor down the hall, and this didn't ruin the recording industry. The only difference today is that the Internet allows for music to be shared with a much larger group of neighbors down the hall. Simply put, the technology does nothing more than enable something that has already been going on to some extent for at least two decades.

3. The realm of art is unique in that it can justify its existence without any commerical benefit to anyone. Art can be created simply for the sake of art. That is to say, contrary to the core of the intellectual property argument, even if the profit motive is taken out of the equation, music as an art form would not cease to exist. In fact, one could make a pretty good argument that music as an art for art's sake would be far, far better than the music as an art for profit's sake that we see so often today in the overproduced marketing gimmicks that pose for good music today (Britney Spears, Christina Aguilera, Backstreet Boys, NSync, etc etc etc etc etc).

[Steve]

I stopped listening to Metallica when they did that gawd-awful cover of the Irish drinking song, "Whiskey in the Jar."

[LauraN]

Why haven't the record companies jumped onto the concept of the music store jukebox? Essentially, burning in the store a custom CD - legally - for a reasonable price? You could pick up a barcode scanner at the door, wander the floor, make your selections and pick it up at the counter on the way out.

Granted, those who prefer to steal music (I shall never agree that taking property without appropriate recompense is not theft.) will not use the option but people like myself might actually choose to spend more money if given the option. I think Wired did an article on just that very concept in 2000 or so.

[amr]

If hip-hop artists would take the skits out of their albums, and cut them down to 50 minutes of decent tracks, i'd definitely be more interested. As it is, I'd have to re-burn just about any hip-hop album I'd buy or keep using the "skip" button.

For all I know, this has happened. I haven't bought a new hip-hop album in about 3 years cos I got so sick of listening to the crap inbetween the songs.

[B.P.]

to anon:

Elvis Costello's "When I was Cruel" was the best album of 2002, a refreshing change from his chamber music and such of the nineties.

[Sandy]

[HOMER swipes ELVIS COSTELLO's glasses]

ELVIS COSTELLO: My image!

[Anonymous]

Aren't those hip-hop skits the same things they used to do on race records back in the 20's?

[Anonymous]

Another reason people download songs is because it's a giant pain in the ass trying to listen to music on the radio anymore. Sit through a 7-minute block of commercials in the chance the song you want to hear comes up next, or try to download it in 2-minutes on your broadband connection. Listen to it for a few weeks, then when you're tired of it, you can delete it. Free, just like in the days when radio played more music than commercials.

The RIAA doesn't understand that downloading has replaced radio, not purchases.

[pdog]

Brad_S is right, that is the model of the future. Musicians are artists, but also entertainers. We need to return to that wandering minsteral model of yore, where people come to see and hear a renouned artist perform. Artists could still make a good living this way. In fact, if they were smart, they would create some new tracks/songs and sit on them, making them heard _only_ at their live performances, for about a year or until they come up with a whole new lineup of tracks/songs, then release the old ones to the masses. They could release it to the masses in any number of ways. They could create a website for fans to download their stuff for free. People could file-share all they want, it wouldn't matter. They could also setup something like mp3.com, where you pay a small fee to have a CD made and shipped to you. There are plenty of people who, despite the fact that they could download all the tracks for free, still end up buying the CD anyways. Or they could setup something like the jukebox mentioned earlier, where fans can pick and choose tracks to form their own 'custom' CD. Either way, file-sharing becomes a non-issue, because the main source of revenue for the artists would be concerts and merchendising. Sure, you could wait around until they release their stuff for free, but I think true fans will not wait and want to hear the new stuff live. Can some fool attend with a tape recorder and microphone and stand by a speaker? Sure, but the quality is about as good as those morons who take cameras into the theater; its a pale shadow of the true product. And there is no excuse for anyone who calls themselves a 'musician' to not be able to perform live in front of an audience.
Of course, where does this leave the labels? No where. They get cut-out of the picture, since it would be a very direct musician-to-fan system. So I doubt they are going to favor this kind of model. But artists, should pay heed!

[amr]

anon@4:24
I didn't realise it, but i think you're largely right. Although it's like all-request radio. When my baby was breach, I wanted a song that said "turn around" so I downloaded the horrible 80's song "bright eyes", played it to my wife's belly for two days and then deleted it.

(I know, playing it for my unborn makes me a bad parent)

[pdog]

i think you've reflected part of the industry structure for techno/dance artists. New song gets cut to acetate, spun in DJ sets. Get enough good crowd-pleasers ready, put it on a cd and start over. I assume most DJs make way more Spinning than they ever would selling records.

[Warren]

I stopped listening to new music ten years ago. Metalica was one of the groups that helped me make that decision. Since then the only group that I paid any attention to is They Might Be Giants, and recently I started listening to a jazz singer named Jane Monheit (kicks Norah Jone's ass!) Sorry, you probably don't care about any of that.

Anywho... I'm cautiously optimistic in regards to music downloads. On the one hand, it looks like an irresistible force that will inevitably bring the RIAA to its knees. This will cause much rejoicing and spark an inferno of musical productivity and creativity. On the other hand history leads me to believe some new organization will rise to corporatize, commercialize and standardize a new blandness.

Looking back on the 20th century:
40's 50's & 60's WOW new sounds, new ideas, great tunes

70's We didn't apreacheate how good we had it till it was gone. Mostly cause it sucked compared to the 60's

80's and 90's TURN THAT CRAP DOWN! oh shit, I've become my parents

[Madog]

I buy maybe 1 CD every few months. I really don't care about owning music, what I want is to listen to a song or album a whole bunch for a few days or weeks and then once or twice in the next year. What I'd really like is a service that could let me listen to an unlimited number of songs from a catalog of every song available when I want to.

[jean]

pdog: great model for the music industry, but you're right in that the "industry" per se gets left behind. Hence their frantic scrabbling to plug the hole in the dike... but the dike has already collapsed.

Y'know, with the current RIAA business model, the artist is the *last* one to get a go at the $$$ for a tune/album/whatever -- if there's any left after everyone else takes their cut. Gee, maybe that's why we're not seeing all the musicians in the country begging us to stop d/l'ing, ya think?

Things that make you go "hmmmmmm..."

[Anonymous]

"In fact, if they were smart, they would create some new tracks/songs and sit on them, making them heard _only_ at their live performances,"

This is the way Frank Zappa used to do it until he stopped touring.

[Anonymous]

Of course, Frank claimed he lost money on the touring itself, though he claimed this was because he used too many musicians and paid them well.

[Sam I Was]

Why do so many people -- Nick Gillespie now included -- always turn this into an argument about record industry "profitability" and "CD sales" and entertainment "business models"? Who cares? Do all of you reserve the same passion for the financial ledgers of The Gatorade Co. or the kitchen-utensil industry?

Unless you're a record exec, this argument should really be a moral and legal one: Does downloading someone's copyrighted work without permission represent infringement? Is infringement wrong? Is copyright law proper? Etc.

My own answer to the three above questions is yes, yes and yes. Others may disagree; either way, that's the level at which this debate should be taking place.

This is Reason magazine, not Billboard.

[Stmack]

If a copyright has any meaning at all - file sharing on a large scale is theft.

I covered this in more detail here: Hold the Mayo

[Curt Warner]

Sam I Was:

Those millions of downloaders didn't get your memo. Maybe that's why folks here are debating "side" issues. Cause the music industry needs to find a solution besides suing people.

[Stmack]

Sorry Bad link above

Hold the Mayo

[Kevin Carson]

Brad S.,

Quite right. Just look at Phish.

LauraN,

You're begging the question of whether copyrights ARE property. Just because the State creates a "property" in a monopoly of the right to perform certain actions doesn't make it actual property.

[Citizen]

I know Sam, but many people here (myself included) will answer no, yes, no. And to see why, you'd have to review any H&R thread with more than 60 comments - they're most likely IP related threads. It's been done to death and at this point, nobody is convincing anyone of anything else. So if you don't mind, we'd all rather whine about how crappy pop radio is. Anyone paying $100 to see two corpses rehash Bridge Over Troubled Water?

[Kevin Carson]

Anon 0210,

As much as I hate their current role in the RIAA/downloading controversy, I have to disagree. Metallica was refreshing in the '80s because they were one of the few metal acts with a fairly decent sound, that didn't go in for the big hair and spandex thing. They are one partial exception to the general rule that everything worth doing in heavy metal was done by the garage bands of the late '60s, and by Zappa, Black Sabbath and Deep Purple.

[Sam I Was]

Curt,

If millions of downloaders are discussing the "side issues" of record-industry profits and the way the business is run, it's because they're grasping for justifications to excuse their actions.

In 1998, average folks didn't sit around playing armchair record-biz analyst. In 2003, they do. Why? Because it's a lot easier to toss around red herrings about "what's best for the record biz" and so on when you need to explain away your behavior.

The ups and downs of the record industry are not germane to the issue of intellectual property. Downloading is either infringement or it's not. Record sales could be at an all-time high, and copyright holders would still have the right to sue those who are illegally copying and distributing their work.

This obsession with an association that happens to be called "RIAA" in the year 2003 feels really arbitrary. It reminds me of the people who are much more interested in the "horse race" aspect of political campaigning than in any broader philosophical issues -- those people who focus more on, say, the "political strategy" of Bush's tax cut rather than the ideological issues of taxation.

I'm not trying to stifle discussion. If people want to amuse themselves by digging into the minutiae of the music industry, go for it. But it has no bearing whatsoever on the real topic at hand: copyright infringement, and the rights of the infringed to seek redress.

[Curt Warner]

Sam I Was:

Right. I agree that the "rights of the infringed to seek redress" is a main issue, and copyright is of course the central issue.

But I find of interest, not necessarily the music-industry arcana part, but rather: Why people are doing this; What the music and film industries are going to do about it; and Where technology fits in. I agree that stealing copyrighted material is wrong, but I think those other questions are worth discussing too.

[pdog]

Sam I Was:

I think we are discussing the other aspects, because the topic you bring up (is it infringement, is it wrong, etc) is pretty clear-cut to many of us. Yes, artists have a right to copyright their material. Yes, unathorized filre-sharing is theft. Yes, the RIAA has every right to sue, and its not immoral. Pretty simple, not much to talk about. So instead, we are talking about real-world practical issues, and the question of, is it smart for them to do so? What do the artists think? What other solutions might be employed besides perpetual lawsuits? I think these are interesting issues that are worth discussing even here in Reason.

[Frenk]

Sam I Was: I still can't see the qualitative difference -- in the abstract zone of morality and philosophy -- between file sharing and, say, photocopying articles from journals (or downloading .pdf files of articles, etc...). As long as there is no profit (i.e., NObody makes money), there seems to me still no moral problem. The law is clearly on the side of the RIAA, but morality is another issue.

To whit: I no longer download music, but I still photocopy articles all the time, and even share them with my friends. And the library not only permits it, it encourages it! Heck, if they don't have an article I want, they'll have a copy sent from another library.

[LauraN]

Kev..."I could just as easily say that your vehement blanket assertion that "downloading is theft" indicates some underlying uncertainty as to whether you're really right."

In the parlance of my miltary friends, "WTF, over?" I haven't a clue what you meant by that statement. Again, an intellectual I am not but I'm certain that my simple statement did not use any weasel words nor allow for my own equivocation. But...if you see it, it's your own vision and you're free to call it that way. I just cannot respond to it. LOL

It is an interesting concept - to essentially state that when one puts "intangible" property in the hands of another (can intangible things be in hand?) that your control and right to it is voided. In some ways I have to agree - logically, there really isn't much chance of my preventing, say, my photography that I put online from being used by another person - appropriate coding and watermarking be damned. And it is my choice to put it in a form that can be easily accessed by the unbathed masses. (You know who you are.) So...in some ways, I have to concur. But I don't like it at all. You've given me something to mentally gnaw on and for that I am thankful. But I still don't agree with you. LOL

[Fred. F]

Frenk,

I think comparing the theft and copyright infringement euphamistically called file sharing is borderline disingenuous (sp?) at best.

I Like what StMack had to sy at http://nomayo.blogspot.com. (Sorry I don't know how to make this a link. But if you scroll through the blog there are two good posts on file sharing.

[Kevin Carson]

Glad to give you a laugh, anyway, LauraN. And BTW, I don't have a CD burner and I've got a slow dial-up connection, so in my case these arguments don't amount to rationalization.

[LauraN]

Kevin, you write, "You're begging the question of whether copyrights ARE property. Just because the State creates a "property" in a monopoly of the right to perform certain actions doesn't make it actual property." If the state gives you a title to your home and land, does that indicate it is not actual property as well? That you may not build on it, live on it, shit on it as pleases you (within ordinances, of course)? You'll forgive my lack of intellect in the area of property rights but I know what is right and what is wrong.

I think the issue is, indeed, that those who are doing the downloading are seeking a reason to justify their actions. Sam I Was has it pegged. Granted, perhaps there are larger arguments in re: the direction of music production and distribution in the future (and what's up with Seal putting his entire new work online for free? Intriguing!).

Were I in the business, I think I would have to eliminate entirely the middlemen - but is it possible to remove the labels entirely from the process? I believe there will in the near future come a time when that is the case. The only thing the industry can do now is try to find a way to make itself fit in and be useful. Sueing downloaders is certainly reasonable but if that is *all* they do, they are doomed - like dinosaurs.

[Anonymous]

"Unless you're a record exec, this argument should really be a moral and legal one"

But it's the record execs that are suing people, not moral and legal crusaders.

Kevin:

Metallica were decent in the 80's. After the black album, it's arguable that they have only made TWO records since. Re-load was all the stuff they left off Load (which had 5 tracks too many anyway), Garage Etc. was also old stuff in the can, S&M was just a waste of time, and St. Anger would have been an OK record if it was 24 minutes instead of 75. Over the last 13 years, that's TWO legit albums and at least FOUR releases of lazy outtakes and live recordings.

[dhex]

what i don't understand - someone please feel free to slap me with a reasonable answer - is why there's the assumption that because someone downloads a song they represent a potential customer. that's like saying everyone who listens to a song on the radio and sings along was/is a potential customer.

for better or for worse - speaking as a former record collector and all around music nerd - music and movies are going to become something people see as an expensive sidebar to their lives, like major league baseball is fast becoming. that's partially due to downloading and partially due to the actions of the big 4.

small labels, if they survive all the downloading, will continue to thrive and expand in the shadows and on the local and regional levels due to the increased ability to advertise and distribute for little or no money.

[R.C. Dean]

"As long as there is no profit (i.e., NObody makes money), there seems to me still no moral problem."

The problem is that you can take potential customers away from someone, and thus take money out of their pocket, by giving away their product for free. You aren't making a profit, but there is still a moral issue.

If I steal your car and ditch it by the side of the road, I haven't made a profit, but I would bet you have some moral issues with what I have done.

"You're begging the question of whether copyrights ARE property. Just because the State creates a "property" in a monopoly of the right to perform certain actions doesn't make it actual property."

Actually, yes it does make it property, under any kind of positivist or realist view of the law (summary, if it walks like property and quacks like property, and if the courts treat it like property, it is property).

Nearly all title to real estate can be traced back to a grant from a sovereign. Does that mean that title to real estate isn't property, either?

All property gives some kind of "monopoly" rights to someone. Does that mean all property is illegitimate?

All property can be protected by invoking the power of the state (trespass laws, theft laws, etc.). Does that mean all property is illegitimate?

If you are going to single out intellectual property as being somehow illegitimate or otherwise not "real" property, you are going to have to find a way to distinguish it from other kinds of property in a meaningful way. This is surprisingly difficult to do. The similarities between real property and intellectual property in particular are striking.

[Kevin Carson]

R.C. Dean,

"Actually, yes it does make it property, under any kind of positivist or realist view of the law (summary, if it walks like property and quacks like property, and if the courts treat it like property, it is property)."

Unfortunately, I don't have much respect for the law as such. If I'm not convinced on grounds of ethics, I consider the law something to wipe my ass with.

"Nearly all title to real estate can be traced back to a grant from a sovereign. Does that mean that title to real estate isn't property, either?"

1) The only valid title to land is one obtained, on Lockean standards (and mutualist occupancy standards) by altering it, mixing one's labor with it in some way. Virtually every state in history has either preempted access to the land in some way on behalf of land speculators, or granted title to feudal or quasi-feudal landlords on land that rightfully belonged to the peasant cultivating it. The distinction is the same as Nock's between "labor-made" and "law-made" property, or Hodgskin's "natural and artificial right of property." According to Murray Rothbard, any land whose "title" is based on a grant by the state, and not personal appropriation by labor, should rightfully be considered "unowned" and become the property of the first person to actually occupy and use it.

And by your positivist standard that anything is "property" that the state says is property, a few hundred feudal landlords were the rightful owners of England, rather than a gang of armed robbers. Sorry, I know which side was in the right, and it wasn't them.

A positivist definition of property simply ratifies the spoils of victory. So by your argument, any robbery or expropriation by the State becomes valid once it is ratified as State property by the holy "law." Well, hey, the answer is obvious: get rid of copyright and patent law.

2) State-enforced titles in land post-date, by millenia, customary standards of possession based on occupancy and use. To the extent they are valid, they can be considered an outgrowth of that natural basis in human society. Copyrights and patents, however, are a completely artificial construct of the state that date back only a few hundred years. They occurred in England in the early Stuart period, at the same time the crown was granting monopolies on soap-making, lace-making, etc., to favored clients. Even the common law expositors of copyright, like Blackstone, concede they are founded only in positive law and are not based on any natural right in property.

[Kevin Carson]

LauraN,

I could just as easily say that your vehement blanket assertion that "downloading is theft" indicates some underlying uncertainty as to whether you're really right.

Copyrights and patents are only a few hundred years old, and were arbitrary creations of royal prerogative, unrelated to any existing ideas of property founded in natural right. Since then, their moral status as "property" has been an issue of contention. Josiah Warren and Benjamin Tucker were disputing the idea before the xerox machine was ever dreamed of, and Bill Gates was just a gleam in his great-great-grandfather's eye.

I've said this before, and I'm sure it's getting old--but here it is one more time: to protect your right to REAL, tangible property, all you have to do is maintain occupancy of your own space and resist invasions of it; to protect intellectual "property," you have to invade someone else's property, and restrict his right to use his own tangible property in a certain way (which amounts to putting zeros and ones into a pattern you have a legal monopoly on). So, like the drug war and other jackbooted wars on non-crimes, it requires an army of snoops and ratfinks to carry out.

[Mark A.]

Something that bothers me about this issue, and and the Brad S/pdog vision of the musical future in particular, is the evaporation of the niche occupied by those musicians who do not tour -- the studio-only artists. For example, the last half of the Beatles' repertoire was never performed by them in concert as they had quit touring after 1965 (or '66 ?). And while the Beatles are perhaps the most noteworthy example, music history is replete with others (the Alan Parsons Project, the Kings Men, Focus, etc.). These artists produced a fairly impressive discography but did not tour. If forced to rely on proceeds from tours, the profit incentive disappears for these artists.

Some would still do it for the love of the art, but others perhaps could not afford to....