Great article by John Snyder on IP and downloading.
The following was written in response to a discussion by the Board of Governors of the New York Chapter of National Association of Recording Arts and Sciences (NARAS) regarding the position NARAS should take with respect to a new public relations campaign proposed by the Recording Industry Association of America (RIAA) condemning those who download music from the Internet.
The subject of digital rights, and the position NARAS should take with respect to it, is near and dear to me. I’ve read a great deal about it. If I may, I would like to offer a few thoughts:
1. Intellectual Property
1. Irrespective of what we think should be done, it is still currently illegal to download copyrighted music that you didn’t buy. This is a problem that needs to be addressed. The statistic discussed in the December meeting that there were 3 billion downloads the previous month shows that the law is going to have to be changed, unless you take the position that downloaded music is stealing and thereby criminalize the society. But how can fifty million people (over 200 million worldwide) be wrong? How do we reconcile the reality of downloaded music with the idea of intellectual property?
Intellectual property has not always been defined and protected as it is today. Thomas Jefferson wrote about the philosophical considerations:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
The above quote appeared in John Perry Barlow’s excellent essay, “The Economy of Ideas”, an essay that first appeared in the March 1994 issue of Wired Magazine. Barlow writes:
If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can’t get paid, what will assure the continued creation and distribution of such work?
Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship.
This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without.
Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.
Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum…
The entire concept of intellectual property needs to be re-examined and ways of protecting it need to reconsidered. Unfortunately, the entertainment industry has, by legislative crook and judicial hook, obtained a 20 year copyright extension. The Supreme Court recently upheld the “Sonny Bono Copyright Term Extension Act (CTEA)” that extended the life of existing copyrights an additional 20 years. This, in the face of Justice Steven G. Breyer’s estimation that only 2% of works copyrighted between 1923 and 1942 are available to the general public. The Supreme Court case pitted the public against Disney, whose early Mickey Mouse cartoons were to enter into the public domain in 2003, and for whom the Congress drafted the legislation in the first place. This is a clear case of a multi-national conglomerate using its political muscle to the disadvantage of everyone but itself. So, instead of creating new content, and allowing long-standing laws to work, the entertainment business frantically seeks to manipulate the process to its own ends. And it does this with the obsequiousness of penurious politicians and a supinely acquiescent Supreme Court. That is the BEST the establishment has to offer, and it has nothing to do with progress or the good of the society.
2. Competition for the CD
The current argument over intellectual property is the result of the sharing of music files encoded as mp3s, Windows Media files, RealAudio files or other formats currently available. The music business blames these downloads, which it perceives as piracy, for the 10% decline in sales for the year 2002. This raises several questions, among them: how and why people listen to music, what other products compete with CDs, and what is the role of radio?
Why is it that record companies pay dearly for radio play and fight Internet play? What is the real difference between radio and the Internet? Perfect copies? If we look at the Internet as analogous to radio, the problem becomes one of performance rights, not the unlawful exploitation of intellectual property. People are creating their own “radio” on their hard drives, and they are constantly changing it. Would this have anything to do with the “McDonaldization” of radio by Clear Channel and others? Would the fact that almost every song on commercial radio is bought and paid for have anything to do with the narrow focus and homogeneous nature of radio? What drives radio is advertising and money, not music. A lot of music gets left behind thanks to the current state of radio; that consumers are rejecting it shouldn’t be surprising. They’re creating their own mp3 playlists, and if the labels were smart, they’d be doing everything in their power to be on those playlists, just like they do everything in their power to be on the playlists of radio stations. Instead, they scream copyright infringement and call their lawyers.
There are other reasons for CD sales to be down.
John Snyder and Ben Snyder
January 31, 2003
Please read the rest it really is a great and valid insight into several reasons for the recent decline.