The Death Of Copyright

I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue – or rather by vice – of the multiplication of the various music-reproducing machines.
— John Philip Sousa, “The Menace of Mechanical Music,” 1906

The latest copyright discussion to break out on the Internet was the result of a post on the NPR radio blog by one of their interns, Emily White, entitled I Never Owned Any Music To Begin With, in which she says she has purchased about 15 CDs in her life. Here’s the crux of what she said:

As I’ve grown up, I’ve come to realize the gravity of what file-sharing means to the musicians I love. I can’t support them with concert tickets and T-shirts alone. But I honestly don’t think my peers and I will ever pay for albums. I do think we will pay for convenience. What I want is one massive Spotify-like catalog of music that will sync to my phone and various home entertainment devices. With this new universal database, everyone would have convenient access to everything that has ever been recorded, and performance royalties would be distributed based on play counts (hopefully with more money going back to the artist than the present model). All I require is the ability to listen to what I want, when I want and how I want it. Is that too much to ask?

Seems like it was for some peopIe.

In particular top-grade musician/whiner David Lowery, who wrote a stern rebuttal, basically blaming Emily and her pals for driving “two dear friends” to commit suicide because…something something illegal downloads. I’m not clear on the logic there either. But apparently disturbed artists never killed themselves before The Pirate Bay came along. Except for Ian Curtis. Who clearly saw what was coming and decide to hang himself, to save time waiting around for Napster to start up and ruin his life.

“A lot of artists feel they aren’t being adequately compensated,” said Lowery in another piece [also on the irritatingly moralistic Trichordist site, self-righteously titled “Artists for an ethical internet”]. Well, boo fucking hoo. I feel I am not being adequately compensated for writing this, so I’d like the world to ensure that I am. KTHXBAI. Oh and I’d like a pony that shits rainbows as well. But despite this appalling lack of response to my personal needs by the universe, I’m still writing it. Because it’s what artists do. They create, not for compensation, but because they feel an urge to do so.

[As an aside, that’s why I never gravitated towards writing as a career.  When you stop doing something for pleasure, and start doing it to pay the bills – it usually stops being pleasurable. To quote Hunter S. Thompson, “I’ve always considered writing the most hateful kind of work. I suspect it’s a bit like fucking — which is fun only for amateurs. Old whores don’t do much giggling. Nothing is fun when you have to do it — over and over, again and again — or else you’ll be evicted, and that gets old.” I can think of no way to lose the joy of personal expression faster than that.]

But if musicians aspire to go down that road, I’m fine with that. However, creating music and calling yourself an artist does not, in any way, entitle you to a living. Especially if you are stuck in a 1980’s paradigm [as Lowery apparently is, which makes sense, given that three decades ago is about the last time his band, Camper Van Beethoven, were vaguely relevant] where record labels would throw money at ten grunge bands from the Pacific NorthWest, in the hopes that one would become the next Nirvana. He simply doesn’t appreciate the massive shift which has occurred. Put bluntly, recorded music has been the centre of the large-scale music business model for about the past 100 years, but may well no longer be sustainable.

Not, I should point out, that it’s exactly on its last legs. The International Federation of the Phonographic Industry said that global sales revenue in 2011 was down by… Well, guess how much from the year before? A whopping three percent. To $16.6 billion. Really, protestations of the damage done by illegal downloading to the music industry seem almost as overblown as the similar claims by Hollywood, while then turning round and report record box-office revenues.

This is a good part of why many really don’t care any more. People don’t respect copyright, because copyright owners don’t respect people. Witness, for example, YouTube’s automated takedown process, which tramples the concept of “fair use” for even the slightest fragment of content. Or the term extension bought and paid for by Disney and their ilk.  We’ve been lied to so often and for so long in the interest of greedy conglomerates, that it’s impossible to take their claims seriously, or those who defend copyright, almost regardless of whether their arguments have merits. Witness Rob Reid’s marvellous talk on his 8-billion dollar iPod:

YouTube video

All Lowery’s weeping, wailing and gnashing of teeth is not going to put the digital genie back into the bottle. But this will not kill music, any more than home taping did in the 80’s. [Remember that over-wrought campaign?] Music existed for thousands of years before Thomas Edison’s phonograph cylinder in the 1870’s enabled the capturing and playback of sounds. While this small aspect of “music” may have led to much greater access worldwide – and certainly contributed to an awful lot of cocaine consumption, up the noses both of record company executives and musicians – the gravy train appears to be nearing the buffers.

It would not seem to be society’s place to restrict or limit innovation by all, or its results, because a small group of people “feel they aren’t being adequately compensated.” Lowery and co. are acting like medieval monks, raging in the face of the Gutenberg printing press, which radically altered the landscape and pretty much killed off the illuminated manuscript as a source of employment. I do agree that artists should be able to be compensated for their work, but the system as it exists is no longer workable. New methods will arise, and indeed, already are doing just that – such as along Kickstarter lines, where people pay in advance, funding the work ahead of its creation, rather than retrospectively.

The details aren’t important. But copyright, as it operated during the 20th century, is basically dead: an unenforceable concept that has been broken on the wheel of digital distribution. The sooner artists like Lowery realize it, and move towards alternative approaches, the better off they’ll be.

In Support of Ethical Piracy

My name’s Jim, and I am an ethical pirate. The music and film industry would have you believe that downloading “their” material is wrong, an approach best summed up as “Piracy is stealing, mkay?” But, the reality of it is, that the morality is a great deal less clear-cut. Here, courtesy of an interesting series of articles, well ahead of the curve, from David Pogue are some hypothetical scenarios, all of which describe what is technically piracy. How many of them do you think are morally wrong?

  • I own a certain CD, but it got scratched. So I borrow the same CD from the library and rip it to my computer.
  • I have 2,000 vinyl records. So I borrow some of the same albums on CD from the library and rip those.
  • I buy a DVD. But I’m worried about its longevity, so I make a safety copy.
  • I meant to record a movie – perfectly legal – but my recorder malfunctioned. My buddy recorded it, so I copy his DVD
  • I meant to record a movie, but my recorder malfunctioned and I don’t have a buddy who recorded it. So I rent the movie from Blockbuster and copy that.

Before getting into the ethics of the topic, let’s nail a few myths. First, the one that piracy is somehow destroying Hollywood. In 2009, total US box-office was the highest ever, exceeding ten billion dollars for the first time, and outpacing the previous mark by almost 10%. Even the raw number of tickets sold – thus removing the effects both of inflation and high-priced 3D screenings – was the highest since 2004. And that’s despite the fact the 12% fewer movies were released than in the previous year. Doesn’t exactly sound like an industry in crisis, does it?

That’s in part because the movie business learned some things from the horrific errors of their musical brothers, who sat around with their thumbs up their asses, refusing to adapt and embrace legal downloading, or accept the realities of the new marketplace. Physical CDs were deemed untouchable until it was too late. The result? “U.S. album sales in 2009 declined for the eighth time in nine years,” and even including digital downloads, overall numbers dropped by 8.5% on the 2008 number.

And no wonder: the CD is basically the same now, as it was when they were introduced in 1982, no better or cheaper. In contrast, the movie industry has vastly improved the theatrical experience with things like Dolby, THX and now 3D [though Chris might argue whether “improved” is the right word for the last!]. The “added value” means that going to the cinema still remains an entirely different experience from downloading a film and watching it at home; there’s no such separation between a bought and downloaded CD.

Not that the process has been without its flaws.  For instance, regional coding of DVDs, intended to protect copyright has actually done quite the opposite. There are many DVDs out there that are unavailable in NTSC, Region 1 format, and so are not compatible with my system. If I want to see these movies, the only options are black-market providers of one kind or another. This means that rather than one rights owner – albeit, perhaps not the geographically “correct” one – getting payment for the work in question, nobody does. Well done, movie industry! Would you like to reload and try for the other foot too?

If you look at DVD sales, there has been a recent dip, dropping 13 percent from 2008-09 to $8.73 billion, down from $10.06 billion. Interestingly, this drop almost exactly balances the increase at the cinema, meaning that overall movie spending remained almost static last year – an impressive feat given the ongoing economic issues of recent times.  The DVD drop may also reflect that the stock of older movies people actually want to see has now largely been mined out – #1 on TCM’s list of “classic” movies unavailable on DVD is now So Big, a 1953 Jane Wyman vehicle which I don’t give a damn about, and am pretty sure you don’t either.

However, I note there is little or no resistance to other methods of films being seen, which also result in no payment being received by the creators or distributors. For instance, ever watched a DVD borrowed from a friend? Or perhaps, rather than buying a new copy of a movie, instead opted to buy a cheap, second-hand DVD? For that also “robs” the studio of income they would have had. Among the biggest culprits there are Blockbuster and their massive piles of ex-rental DVDs [well, assuming you can find a branch that hasn’t shut down, anyway…], but no-one claims this is “financing terrorism.”

Which brings me naturally to the dubious claims of the MPAA and its associates that video piracy equates to organized crime and terrorism. I’ve no doubt that organized crime use it as a fund-raiser: it’s a low-risk and potentially lucrative trade, so merits no more than a “Well, duh…” response there. But the sweeping generalization connecting the two is laughable. The vast majority of people who download movies are not organized criminals or terrorists, and the near-hysterical attempts by the business to label them all as such, are manna for parodies, such as the one below from The IT Crowd.

YouTube video

The key difference between myself and large-scale, commercial pirates – I should stress, I have no problems with the industry going after them – is that I have basically zero interest in downloading Twilight: Eclipse or The Last Airbender. My interest in downloading material is limited to two areas: replacement and obscurities. And it’s here that we enter the realms of “ethical” piracy – the unofficial downloading of material, that technically breaches copyright law but is, to an extent, morally justified. Let’s go into each of these categories in more detail, starting with format replacement.

Take Blade Runner. I have, over the years, bought it on: VHS tape; letterbox VHS tape; laser-disc; DVD; and DVD box-set. All told, I have probably spent about a hundred quid or so, on just a single movie, to keep up with the format changes imposed on my by the industry, with most of my copies now being completely obsolescent. Downloads provide a credible and, to me, entirely legitimate, alternative to this. It’ll remain that way until Hollywood lets me trade in my DVDs for the Blu-Ray version. Contrast music: if I buy a CD, I can rip it to my computer, rather than needing to purchase the MP3 from Itunes.

The need for this became clear during the recent re-view of the TC Top 50, as I found a significant number of movies listed were no longer accessible to me. We don’t even possess a video-recorder of any kind these days, let alone one that can handle PAL tapes – as a result, almost all of our VHS tapes became landfill fodder during the Great Leap Sideways of 2009. I view my replacement of these with digital copies as closer to a basic human right, rather than the threat to the fabric of civilization as we know it, which the MPAA would have you believe.

The last thing I downloaded was a 1982 TV version of The Woman in White, which I remember fondly from my youth, and which had apparently vanished without trace since. It was hardly high-quality, having apparently been ripped from a VHS print. Even viewed on a computer, it looks grainy and choppy: on a big screen, I suspect it would resemble a game of Tetris in period costume. But, still – I was delighted to have it. Of course, after spending gigabytes of bandwidth on that, I discovered days later that it was getting a UK DVD release. Oh, well…

Still, this does illustrate the basic principle, and I have few qualms about downloading material which is simply not available in a legitimate fashion. It’s more than a bit like the VHS-trading community which flourished among the horror community in the late 80’s and early 90’s, when James Furman and the BBFC were in full-on Stalinist mode [“What? Nunchakus?”]. More hi-tech, of course, and a good deal simpler too. No buying of VHS tapes by the box, or kicking off dubs using your two VCRs: by default, when you download a file through BitTorrent, it automatically becomes available for others to share.  Very democratic.

You can also use it to cover unforeseen circumstances, such as when a TV schedule change screws up your recording. We had this just this weekend, when for some reason, MI-5 didn’t start at the scheduled time, which meant our Tivo of it cut off with five crucial minutes remaining – and it’s not on Hulu or any of the other official sources. However, courtesy of the marvellous, a repository for British TV shows, we were able to see the missing chunks immediately. It’s hard to conceive of even the copyright holder truly objecting to this.

If I do have any sympathy, it’s with the group who made the PSA below – porn stars. The Internet was once an open money-pit for the adult entertainment industry, but things have now reached the stage where, if your tastes are for straightforward heterosexual fun at least, you’d be an idiot to pay for it. Still, it’s an industry that has always been on the cutting-edge of technology: VHS, the Internet, home camcorders, etc. so I’m sure they’ll adapt and survive. Maybe the next thing will be 3D-porn? Hey, bet you didn’t see that coming… Er, as it were…

YouTube video

And that’s the way the entertainment industry operates. TV was supposed to kill off the movies, which were supposed to kill off live theatre, which was supposed to kill off… I dunno, gladiatorial combat or something. It didn’t happen. The media which deserve to survive will do so. They may need to change, but even if the impetus for that is morally-doubtful activities such as piracy, can we really say that is a bad thing? Online downloading is a door the industry may not want to open, but there’s a battering ram coming, driven by the 16.7 million seeders currently present at The Pirate Bay. Get in the way if you dare.

Against Copyright

The issue of music piracy on the Internet has reared its head again, with the entertainment industry blaming the likes of Napster, AudioGalaxy and Kazaa for the decline in CD sales. This should be taken with a pinch of salt, as they are quick to blame piracy for any and all ills. Witness the MPAA website, which says: “One real-world example of piracy’s devastating impact on the legitimate marketplace is with the 1999 release of the film Star Wars: Episode 1 – The Phantom Menace. Pirate copies of the film (created by using camcorders in US theaters) flooded the Asian marketplace while the film was still in U.S. theatrical distribution. When the film opened legitimately in Asian theaters, attendance was far below expectations.” Er, could this perhaps be because it sucked? I should also point out that the film still grossed over $920m worldwide, the majority of it outside North America. As the original Star Wars took barely 1/3 of its money overseas, it thus hardly seems in need of protection.

With regard to music, the actual evidence – largely ignored by the mainstream media for obvious reasons – appears to be that people who use file-sharing networks are twice as likely to spend more on music as they are to spend less. But regardless, I imagine few people feel particular sadness for the record companies; those with long memories will remember them saying when CDs arrived, that they would drop prices once the new medium caught on. Their failure to do so, preferring to price-gouge consumers mercilessly, is certainly one of the direct causes of any decline in sales.

Ilsa Spears vs. Scissorhands Jackson

They are also guilty of force-feeding the market with garbage, for which it certainly isn’t worth paying $14.99, and up – indeed, if local phone calls here weren’t free, neither would it be worth the cost of downloading. I just don’t care about an industry for whom Britney Spears and N*Sync (anyone else praying for a rerun of the Challenger disaster?) are the cutting edge, and where hype and image are more important than substance and talent. Keep cramming crap down anyone’s throat, and they will eventually gag, throw up and refuse to eat any more, no matter how good you tell them it is.

So what if Eminem loses a million sales of his new CD? While his previous LP was amusing enough, all he now seems to offer is whines about how screwed up he is (it’s all his parents’ fault, naturally) and how everyone hates him. Mr. Enema badly needs to Get Over Himself. Who cares if the executives at his record company have to cut back on their coke habit?

The entertainment industry already hated the Internet, largely because it renders them redundant. You need $20m to start a radio station, $200m for a newspaper and $2000m for a network TV station. But any idiot can start up a website (even me!), and use it to promote and distribute their book, CD, film, or whatever. It’s a level playing-field, and that infuriates and threatens media cartels. There’s no denying that the vast majority of musicians, who are at the bottom of the pyramid, benefit from the Internet and the exposure it permits. Those at the top are the only losers, and I would certainly say they deserve as little sympathy as the baseball players who threatened to strike while earning an average $2.4m per year.

The concept of copyright, as currently applied, no longer has any resonance for me. I can see why creators of work should be entitled to some protection during their lifetime, though no-one has a “right” to get paid for their art, any more than I have a “right” to get paid for writing these words. However, the principle has been utterly corrupted by the likes of Disney and the others who are largely responsible for the (soon-to-be-challenged) Sonny Bono Copyright Term Extension Act, which packed another couple of decades onto the time before material become public domain – thereby saving Mickey Mouse from becoming fair game for one and all. This is merely the latest in a series of corporate land-grabs, which have extended the period of copyright from 14 years to over a century.

Jack bravely defends Hollywood
from the public domain

What moral justification is offered for this? Here’s Jack Valenti, chairman of the Motion Picture Association of America – conspiracy theorists might care to note that Valenti was in JFK’s 1963 Dallas motorcade, and within hours of the assassination, became the first special assistant to President Lyndon Johnson. Hmmm. In testimony to Congress, he said: “The core copyright industries, movies, TV programs, home video, books, musical recordings and computer software…gather in some $45 billion in revenues abroad, and has grown its employment at a rate of four times faster than the annual rate of growth of the overall U.S. economy. Whatever shrinks that massive asset is NOT in America’s interests… The case for copyright term extension is that simple.

Yes, it begins and ends with nothing more than bare-faced greed. We want to make more money, so you will change the law to let us do so. You don’t think the media companies’ $6.5m in political contributions had anything to do with the bill getting passed, do you? I’m sure it’s mere coincidence that, of the 13 sponsors of the original bill in the House of Representatives, ten took money from Disney. Indeed, the very same day Senator Lott of Mississippi signed on as a co-sponsor, his campaign committee received a Disney check for $1,000.

It is double ironic that it’s Mickey’s hands which are grasping, given how many Disney films are based on public domain works – or in the case of The Jungle Book, came out one year after author Rudyard Kipling’s copyright expired. The laws which they lobbied to pass, would have prevented them from making such films freely, and as it currently stands, copyright doesn’t protect, it suppresses. It’s acknowledged that Shakespeare’s Romeo and Juliet is based on Arthur Brooke’s poem Romeus and Juliet/ This was written less than 30 years previously and would, under existing law (the creator’s life, plus 70 years), have led to Will being smacked with a plagiarism suit faster than you can say, “First, let’s kill all the lawyers.”

Readers with long memories may remember the “Home Taping is Killing Music” campaign begun by the International Federation of the Phonographic Industry in 1978. [On the nostalgia front, there was also the bizarre and highly amusing British Video Association claim in the following decade that video piracy financed terrorism. As yet, the MPAA have yet to claim that downloading Rush Hour 2 off the net is aiding Bin Laden, but after the “Drugs = Terrorism” adverts – which conveniently forgot the CIA funding pumped into Afghanistan when they were fighting Commies rather than us – it can surely only be a matter of time. (2010 update: And so it proved) Anyway, where was I…? Oh, yes…]

Funnily enough, home taping didn’t kill music: it survived, just as it’ll survive the Internet. In even the worst case scenario – the absolute and final death of the music industry – musicians would have to go back to playing live, as they did for the great majority of recorded history. They will have no option but to succeed or fail on their talent, rather than how many times MTV plays their video. It’s hard to see why anyone could realistically view this as a tragedy.