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Face the Music

I was the first among my friends to install Napster. I still remember my parents calling me into the family room to watch a nightly news segment about Shawn Fanning – the backwards-baseball cap wearing undergraduate student – and his innovative new program which allowed users to upload song files and share them with each other for free.

Although I don’t remember the exact content of the report, I do recall that in these early days of P2P networks the public focus was never really on copyright infringement. No one did, or perhaps even could, anticipate the extent to which this new phenomenon would spread.

This was novel. This was nothing wrong. This was Napster.

But then, of course, reality intervened, economics intervened. In 2000, Metallica discovered one of its new songs (the prophetically titled “I Disappear”) had been leaked onto the network and was being shared by hundreds of thousands of people around the world. And so the lawsuits began. And so the music industry’s problem became the world’s problem. And so Napster was shut down.

All of a sudden, the topic of file-sharing was discussed in a whole new light.
It was no longer as harmless as little kids trading baseball cards. It was in direct violation of U.S. copyright laws. It was stealing. Even my parents – the same people who first encouraged me to check out Napster – were now condemning it.

However, taking Napster offline did not end what had become (and, in some ways, still is) the music industry’s biggest threat to business as usual, to its bottom line. Because, like me, like my friends, all of the original users simply switched over to one of the countless other imitations which now existed.

I can still visualize sitting in the waiting room at the dentist office when I picked up a copy of Newsweek and read a short article comparing these new file-sharing websites. And so I installed WinMX. And when that was shut down, I got SoulSeek.

I never uploaded music. I only downloaded songs. I didn’t do it for the thrill or as a way of sticking it to the music industry. The decision was based more upon a naive, simplistic train of thought: Why pay for something when you can get it for free?

But, this isn’t a confession; it’s a call for a brand new mindset.

For those in the business of making and distributing music, the Internet has been both a blessing and a curse. Countless bands whose music would have previously gone unheard can now parlay their 200,000 listens on Myspace into a record deal; labels which previously had to rely on retail outlets to sell their products can now realize larger profits by exploring new online strategies and/or selling albums directly to consumers

On the other hand, the prevalence of broadband connections has also opened the door to a highly visible black market, one in which individual songs and whole albums are disseminated without any regard to who owns the rights to their distribution.

In order to survive, the music industry needs to recognize this duality. Record companies much accept that the Internet will always be a haven for those who wish to share music for free. But it can also be a wealth of opportunity.

At least once a month it seems a new website pops up offering a unique business model and a new way for labels and artists to make money.

One such example is Amie Street, an online social network/music store which operates according to the laws of demand – all songs start out as free and the price rises as more people purchase them (up to a cap of $0.99) (Robinson, 2006).

However, instead of pursuing more proactive approaches like these to actually make money, the record industry is wasting its time tracking down the revenue it believes it is losing.

This type of reactive behavior not only causing the major record labels to lose profits, but also to lose the respect of consumers, 80,000 have signed a petition sponsored by the Electronic Frontier Foundation which demands that Congress put an end to RIAA’s destructive practices (“RIAA petition,” n.d.).

To show how absurd this quest for reparation has gone: in December of 2007, the RIAA sued Jeffrey and Pamela Howell for merely ripping song files off CDs they had legally purchased and storing them on their home computer (Bangeman, 2007b).

According to RIAA spokesperson Jennifer Pariser, “‘When an individual makes a copy of a song for himself, I suppose we can say he stole a song’” (as cited in Bangeman, 2007b).

Clearly, the RIAA wants to have its cake and eat it too – telling consumers to purchase music through legal channels and then telling them what they can and cannot do once they have.

If the RIAA and the record companies it represents don’t want to acknowledge “fair use,” they certainly should not expect fair play.

References

Bangeman, E. (2007b, December 11). RIAA: Those cd rips of yours are still “unauthorized.” Retrieved April 19, 2008, from Ars Technica Web site: http://arstechnica.com/news.ars/post/20071211-riaa-those-cd-rips-of-yours-are-still-unauthorized.html

Robinson, B. (2006, October 4). Amie Street takes innovative music model into beta. Retrieved April 19, 2008, from Tech Crunch Web site: http://www.techcrunch.com/2006/10/04/amie-street-takes-innovative-music-model-into-beta/

RIAA petition (n.d.) Retrieved April 19, 2008, from Electronic Frontier Foundation Web site: http://w2.eff.org/share/petition/

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Internet Killed the Video Star (And Radio Star. And…)

The issue of music copyright has had a long and contentious history in the United States: from its origins in the Constitution (when the phonograph was the primary method for home listening) to its hot-button status during the current Internet Age (a time when music can be heard on vinyl, cassette tape, compact disc or in digital MP3 format).

Over the course of this 220-year period, music copyright laws have most often been updated in response to the emergence of technologies which offer new possibilities in terms of the way music can be distributed for personal use. Therefore, it is no surprise that the recent proliferation of digital innovations, such as P2P networks, online streaming and Internet radio – all of which offer people even more possibilities for disseminating music – has generated a wealth of problems concerning effective methods for enforcing copyrights.

At its theoretical core, a copyright is intended to encourage the production of new original works by granting an author the exclusive rights to profit from their ideas and its distribution – be it the lyrics to a song, the melody and rhythm, or the actual sound recording (Moser, 2002).

The basis for this practice is drawn from Article 1, Section 8 (the so-called “Copyright Clause”) of the U.S. Constitution, which granted Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (as cited in Moser, 2002).

With regard to music, this compensation occurs in the form of royalties – payments made to the copyright holder whenever a work is sold or performed. In 1909, a new Copyright Act set this fee at two cents for every distributed version of a record which contained a copyrighted song (Moser, 2002). Today, these residuals often come in the form of a negotiated percentage of the listed selling price (Passman, 2006).

Of course, as it has become increasingly easier and more cost-effective for individuals to make copies of sound recordings and share them with others, the need for new sets of laws to govern the collection and distribution of copyright royalties has become the subject of intense and prolonged debate.

In the 1970s and 1980s, the introduction of the cassette tape, along with portable listening and recording devices (such as the Sony Walkman), prompted the practice of making personal mixtapes and precipitated several anti-piracy campaigns – including one sponsored by the British Phonographic Industry which declared: “Home Taping Is Killing Music” (Martin, 2003).

These crusades were – and still are – centered around the central argument that the ability to duplicate sound recordings at home and distribute these copies for personal use would lead to a decline in album sales (Martin, 2003).

Consequently, as the use of cassette tapes gradually began to fade out in favor of compact discs during the early 1990s, more legislation (such as the Audio Home Recording Act of 1992) was enacted to address the emergence of this new technology, which enabled people to make an endless number of perfect, digital copies of music recordings.

In order to quell fears among those within the music business concerning the effects this newfound capability would have, the law required manufacturers of digital recording devices to install a form of Serial Copy Management System on their products (a feature which would inhibit individuals from making more than one copy of a song) and forced them to pay royalties to record companies based on the sales of their products (Pareless, 2002).

Interestingly, the act also declared that the noncommercial duplication of analog and digital sound recordings was not copyright infringement (Weiss, 1992). This stipulation was overturned in 1997, when the No Electronic Theft Act made it a criminal offense to reproduce copyrighted material and exchange these copies on the Internet, even when this action did not produce personal financial gain (McCullagh, 2003).

The following year, the Digital Millennium Copyright Act sought to comprehensively address the music industry’s continued anxieties regarding the loss of sales due to copyright infractions in the digital age. As such, the law criminalized the act of circumventing DRM protection and mandated that digital broadcasters pay licensing fees to record companies (citation).

The first substantial test of these new provisions occurred in 1999, when Napster, a free online service for sharing music files, was introduced. Although the site was eventually closed in 2001 following extensive litigation, numerous other P2P networks appeared in its wake.

In response, the Recording Industry Association of America (RIAA) began filing lawsuits against people it claimed were engaged in the illegal practice of uploading and trading copyrighted music online. While most of these cases have resulted in unspecified out-of-court settlements, the first proceeding to go to trial resulted in a jury awarding $220,000 in damages be paid to the RIAA by Jammie Thomas, a woman and mother convicted of downloading 24 songs from the popular file-sharing network Kazaa (Bangeman, 2007a).

As well, to combat the uploading and sharing of copyrighted songs via these free services, several legal alternatives (e.g. iTunes, eMusic, Rhapsody, and even a revamped Napster) have materialized on the Internet – offering consumers digital audio downloads for a per-song fee or on a monthly subscription basis.

Moreover, record companies have tested the viability of Digital Rights Management (DRM) software, an array of technologies that make it more difficult (but not impossible) to copy music and/or transfer it to another digital device. However, consumer complaints have prompted most labels to abandon the use of DRM and instead offer unprotected files on CDs and for download via legal online stores (Holahan, 2008).

In addition, a number of recent disputes have centered on the payment of royalties by online radio stations and audio streams hosted on numerous blogs and other websites. In an effort to generate revenue from these digital outlets, SoundExchange, a non-profit organization, has formed with the express purpose of gathering and distributing money from webcasters and websites that stream or play copyrighted music (Barnes, 2000).

Finally, a new trend has started over the past year in which several bands, including Radiohead and Nine Inch Nails, have experimented with making their music available on the Internet for whatever price consumers are willing to contribute.

Although it remains unclear whether this will be the successful business model of the future, one thing is certain – thus far, no solution for controlling the illegal dissemination of copyrighted music via digital avenues has been proposed which has been deemed acceptable by all parties involved: consumers, musicians and record companies.

References

Bangeman, E. (2007, October 4). RIAA trail verdict is in: Jury finds Thomas liable for infringement. Retrieved April 19, 2008, from Ars Technica Web site: http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html

Barnes, C. (2000, November 28). Music industry casts new net for streaming royalties. Retrieved April 19, 2008, from CNET Web site: http://www.news.com/2100-1023-249124.html

Holahan, C. (2008, January 4). Sony BMG plans to drop DRM. Retrieved April 19, 2008, from BusinessWeek website: http://www.businessweek.com/technology/content/jan2008/tc2008013_398775.htm

Martin, P. (2003, December 31). Forget the spin, taping is not killing music. Retrieved April 19, 2008, from Sydney Morning Herald Web site: http://www.smh.com.au/articles/2003/12/30/1072546532286.html

McCullagh, D. (2003, January 27). Perspective: The new jailbird jingle. Retrieved April 19, 2008, from CNET Web site: http://www.news.com/2010-1071-982121.html

Moser, D. J. (2002). Music copyright for the new millennium. Vallejo, CA: ProMusic Press.

Pareles, J. (1992, April 12). Grabbing for royalties in the digital age. Retrieved April 19, 2008, from New York Times Web site: http://www.nytimes.com

Passman, D. S. (2006). All you need to know about the music business. New York: Free Press.

Weiss, G. D. (1992, May 3). Home recording; all those in favor…. Retrieved April 19, 2008, from New York Times Web site: http://www.nytimes.com

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