Dr. Frank's What's-it

Amen. I made the mistake - not to be made again soon - of attempting to discuss this in a civil fashion on a message board. Among other things, I was derided for my "sense of entitlement" for daring to suggest that those bands who are popular enough to earn a living through selling records actually have the right to collect the earnings from the tangible results of their popularity rather than having their work stolen. This response - essentially, "Stop crying - the world doesn't owe you anything" (I'm not owed royalties for records I sell? I don't have a right to complain about people stealing from me???) - has convinced me that there are some people on the side of Internet theft who are just being deliberately obtuse in order to further the myth of the working musician as enfant terrible; it's easier to paint us all with the Metallica brush than to face up to the reality that our sense of "entitlement" only extends to wanting to be paid for the use of our product. Or perhaps they're just extremely obstinate - either way, there's clearly a lot of disingenuousness involved.

The Photodude guy is right on, by the way - he's written some of the best stuff I've seen on this issue.

Being a recent convert to the anti-piracy camp, I never realized how wild the rationlization for piracy was before. Every argument in order to defend piracy must necessarily avoid the topic of file sharing and instead pick on the music industry or wierd ramblings about supposed anachronisms of copyright.

I think Spacetoasts' "The only sense of entitlement here is that of the mp3 thieves." is pretty dead on.

Aww jeez, I've always dreamed of seeing my alias in lights, Trebuchet lights, no less...

Ben-

First, I think one aspect of the "Metallica brush" situation is that not enough of you guys, and by "you guys" I mean niche-market artists and entertainers, are discussing the issue seriously publicly (kudos to you and Dr. Frank) so at this point Metallica pretty much personifies the copyright holder's side of the debate by default, and even if they're on the right side, they're pretty hard to get behind. It remains to be seen what kind of role popular feeling will ultimately play in this issue, but if I were you guys I'd be trying to line up as many more-sympathetic-than-Metallica spokespeople as possible. I don't know exactly what 'sympathetic' would mean here, but most likely anything is an improvement over Lars Ulrich.

Second...hehe...Dr. Frank is apparently doing show(s) in a Metallica t-shirt, obviating the brush. Maybe in context this is a more sensible move than it looks, but, e.g., the show review linked below does not preserve this, imo. Dr. Frank, I don't know what meaning you predict your audience to unravel in this gesture, but, as both you and Mr. Weasel will have noticed, music fans are a fickle lot who can't generally be counted on to make an astonishingly veridical interpretation. I wonder if this kind of thing doesn't cloud the issue more than it successfully carries over the statement. But obviously there are a variety of different levels of presentation. Just a thought about tactics.

Damn, Spacetoast, I wish I was so on top of things that all my t-shirts were deliberate tactics in aid of a grand strategy. Honestly it was just an old t-shirt I had lying around. I certainly wasn't trying to "say" I stand with you, Metallica, my brothers. I'm not on any kind of crusade, really. Just voicing my concerns, trying to puzzle out a complex dilemma, and saying what I think.

However, you're on to something about the lack of sympathetic figures weighing in in favor of preserving the integrity of copyrights.

My sense is that most musicians who think about the issue at all are concerned about it, and regard the prospect of an "all content wants to be free" world with something less than the elation they are supposed to feel. They talk about it amongst themselves, with a greater or lesser degree of stridency. It's only to be expected, since they are holders of rights that, in some quarters, have been summarily declared void, or optional. But publicly, many of them seem afraid to say what they really think. We all want to be liked. And as Ben says, you can get attacked viciously for expressing this opinion.

So, many of them parrot the line that the evil record companies are the only possible party that can be hurt by unauthorized copying, and that like all cool, decent folks, we think that it's a great deal for us good guys, with no drawbacks; and that *of course* we're selling more records rather than less because of the vast legions of new fans who hear about us because of the "free advertising."

Now, though there's a lot of disingenuousness around, I think most of those who cite themselves as examples of people who participate in ptp sharing but buy more records rather than fewer because of it are sincere. And I don't doubt that there are publicity benefits to the process (though it strains things a bit to call it "free" advertising. Somebody's paying for it.)

Still, I remain skeptical about the theory (which in some eyes you are required to hold as a good-guy-attesting article of faith) that it is, or will always be, a net plus. And part of the reason is the fact that those who champion the "free content is a unequivocal blessing to those musicians who do not happen to be evil" line (and on whose benevolence and charity the putative model depends for even a degree of success) tend to have an extremely hostile "screw you bastards" attitude when you talk to any of them. It does not inspire confidence.

The thing is, I would love it to be true. I would love it to be the case that individual copyright infringements (which have, to be sure, always occurred) are and will always be dwarfed by the mass custom they generate. (And as a music fan myself, I'd love to get everything for free with no worries about the possible negative impact. And I would always buy more than I steal, of course.) But I have a hard time believing it, especially over the long term. And really, a copyright is a right, not a favor granted on the whim of the copier. I don't see how you can get around that.

Well, while the points made above are generally unassailable, I still think they tend to caracature a number of arguments. Look, you and Ben are on the front lines and have apparently been e-mailed by the stupidest, most obtuse, least original commenters on this subject. The combination of a DSL line and some half-digested Gramsci is apparently not a boon to rational argument. Fine.
But while it's easy to point out the self-serving 'logic' of the music-as-communism set ("hey man, 'to each according to his needs,' and dammit, I need some Screeching Weasel for the party tomorrow. Rock on, comrade Weasel!"), I still haven't seen a lot of evidence that file sharing is clearly worse than all the previous methods of ripping off copyrights. You and Ben are right, Frank, that piracy is akin to theft, though with any good that's non-rivalrous in consumption, piracy will be a fact of life. I'm sorry if that sounds like a 'tough luck' argument, but both of you have been around long enough to know that piracy wasn't invented by Shawn Fanning.
I understand your skepticism that piracy 'will always be a net plus" Okay, net plus maybe pushing it, but it's also far from clear it's a one-to-one drain on sales. That's what Ben argues when he writes, "Every time an album is stolen online, it represents a physical manifestation of a recording (like a CD) that would’ve – were theft not possible - been sold, depriving both the label and the band (and any middlemen that may have been be involved, such as distributors and stores) of their rightful income." Maybe, but more likely, some fractions of the downloads represent foregone sales. Others are people who've never heard of MTX/SW and who would never have bought anything by them, and still won't. Another fraction are music geeks who will then go out and buy the album (this fraction may be tiny, I don't know). But it's clearly not a case of downloads = lost sales on anything approaching a 1 to 1 ratio. Does that mean downloads = immorality on something less than a 1 to 1 ratio? Maybe, maybe not - but that's not the point here (sorry if you think that's a dodge).
When Ben discusses why MP3s are so different from blank tapes and other methods of stealing IP, he asserts that, "there is a much larger segment of the population that is simply stealing albums." But there's no way to know that this is true. I would love to point to some data on this one way or the other, but it doesn't exist yet. Easy for me to say; I don't make my living in music. But copyright infringements have been going on for decades, and I still don't quite know how to disaggregate the overall drop in record sales (which began ca. 1991-1993) into individual causes.
None of this means that everyone should go out and pirate music. Ben and Frank's wariness about a phenomenon that threatens their livelihood is understandable and reasoned. I still believe that it's just another means to commit an age-old crime, and that it represents yet another impediment to making a living making worthwhile music. The list of slings and arrows the indie musician is subject to is undoubtedly long, and I understand the frustration Frank and Ben feel when their 'fans' demand that they seem cool with theft. But I still don't see that it's any WORSE a problem than restricted radio playlists (except at college station with transmitters big enough to broadcast to 6 city blocks), major label retrenchment, or burning friends CDs. None of its fair, and none of it promotes good music. Yet I remain certain that we'll GET Zen Arcade II. Maybe I'm the naive optimist here, but it'll take a lot more than ptp to kill indie music.

"And as Ben says, you can get attacked viciously for expressing this opinion." One more: can semi-literate arguments/justifications really rise to the level of 'vicious'?
Sorry to direct so much of this to the proprietor of another blog, but said proprietor has no comments, and an advertised policy of not opening e-mails for weeks.

I am in no way endorsing this petition, but thought it was relevant to the discussion: http://www.copyleftmedia.org.uk/justsayno/.

Anyway, one of the problems with this debate is that it too often becomes a battle between the rabid "information wants to be free" types and the equally rabid big media, protect our way of doing business at all costs, RIAA types. There is a third position that respects the legitimate IP rights of artists like Ben and Frank, but at the same time does not want to see the RIAA and its ilk squash this new technology before it has had a chance to reveal all its potential benefits.

Frank's and Ben's indignation at some of the goofier arguments of the free music folks is completely understandable, and Frank's concern about the harm that some of the suggested "alternative" business models may do to independent music is well-founded, but that just means there is a lot of talking and thinking to be done before we work out a solution. The RIAA's actions so far -- lobbying for the DMCA and filing lawsuits against teenagers -- are really not contributing to a long-term solution.

As for whether unauthorized reproduction of sound recordings is or isn't stealing, well, this is starting to get redundant, but consider this:

(a) Prior to 1972, unauthorized reproduction of sound recordings wasn't even copyright infringement under federal law, and sound recordings fixed prior to 1972 still are not within the scope of copyright (state laws do, however, protect such works in many cases).

(b) To this day there is no public performance right for sound recordings (except for digital broadcast rights).

(c) Copyrighted works are subject to compulsory license in many circumstances, meaning the copyright owner must allow their use in exchange for a statutorily determined fee. Can you imagine being forced to rent your car for a prescribed fee?

(d) The fair use doctrine allows certain uses of copyrighted works without compensation to the copyright owner. There is no equivalent doctrine with respect to real or personal property.

(d) Finally, the students being sued by the RIAA are being haled into civil court, they aren't being arrested by the police.

These admittedly disjointed facts demonstrate one thing: copyright protection is a carefully circumscribed, utilitarian, statutorily created set of rights. Infringing those rights may be "wrong" in some way, but calling it "stealing" is inaccurate and inflammatory, and obscures important distinctions. Calling a file-sharer a thief is no more productive than calling a musician who wants to profit from his work a sell out.

Dr. Frank-

Oh, whatever. I wasn't accusing you of suiting up for team Metallica. I was pointing out that wearing a Metallica t-shirt is a good way of inviting that misunderstanding--to which you're obviously welcome to assign any value you like. As my niece says, chillax dood.

Marc-

You're absolutely right. It's highly unlikely that there's a neat isomorphism between downloads and lost sales. But that doesn't touch the ethical point, or offer much in the way of a forecast. File sharing is still incipient and all that...we're in danger of going over the same territory here.

Also, you miss the point of my question on the now archived post. The issue wasn't whether you, Marc, had bought second and third copies of things...I wasn't trying to catch you out on something...the issue was the enormous difficulty of normalizing a scheme in which the money values of the contents of albums are determined through private subjective processes as opposed to *being determined* by the market. Didn't you say you were from somewhere around the bay area? The famed Epicenter Zone in SF was a martyr to this pipe dream.

By "vinylphile purchases" I meant, generically, purchases that have an added value to the buyer above the music and normal packaging--e.g., a friend of mine has four copies of Young, Loud, and Snotty (one is a 1st press, one is a 1st press for listening, one isn't a 1st press, and one is a cd). Those four are not identical items in his world. I was excluding this kind of thing merely to keep the significant issue clear.

Also, you keep talking about teenage rock'n'rollers as though the Zen Arcades just pop out of the garage fully formed. We could argue about what the good albums are, but, being honest, you have to at least allow for the investment of time and personal resources that's a necessary condition of the musical development or whatever you want to call it. Notice how none of the later mtx albums have a Marine Recruiter on them? ;-)

Aaron-

I still don't understand what you're after, other than that you think it's important not to call anyone a thief unless there's a car involved. And when I see analogies like this...

"Calling a file-sharer a thief is no more productive than calling a musician who wants to profit from his work a sell out."

...I think you must want me to drag out more URL's from South Texas Community College.

The former, whether or not it's productive, which meaning I refuse to take for granted here, is as far as I'm able to see accurate as long as we're not fudging a definition of "file-sharer." The latter, if it's supposed to describe only the case of "a musician who wants to profit from his work" is inaccurate because this case omits the sacrificing the one thing to the other bit. Maybe 'thief' is inflammatory, but it's semantically sharper, which is the critical difference.

Anyway, I don't see any compelling social interest here, as there might be in the case of, e.g., a drug patent, so the question I want answered before I'll concede the stealing point is this: If I make a song, why shouldn't I be able to restrict access to it to people who pay me for access to it, as I want to, excepting free speech and related fair use stuff? I'm still looking for the principle, in addition to any point of law...

Maybe you think I'm being inflammatory or unnecessarily combative about it, but if that's the case, it's only the case because I have yet to see the piracy folks produce a real justification for what they do. I agree with you that the solution won't happen just if all the relevant principles are sorted out, and it could very well happen if they're not, and I even agree that any legal solution must be pragmatic above all, but that doesn't mean either that there aren't principles involved or that they're not worth the trouble of pursuing. And I don't see any value in politeness and hand-holding where the piracy idiots are concerned--I think, it's not right, it's not neutral, therefore it's wrong, not "wrong," and less wrong than some other thing only means less wrong, and not more right.

Mr. Toast,

You agree with my statement that a download does not equal a lost sale, but add this: "But that doesn't touch the ethical point, or offer much in the way of a forecast." Once more, with feeling: I'm not here to touch ethical points. That's a great example of a 'bad touch' that leads to lots of overheated arguments in comments sections and the like. I find your discussion w/Aaron et al fascinating, but I'm not going to wade into that at this point. You're also quite correct that I'm not much of a prognosticator. My point is that no one knows enough at this point to be one. I've seen some forecasts that I consider unlikely to come true, but I'm not going to offer up my own. We just don't have the data, nor the framework to make sense of whatever data is out there.
I agree that "normalizing a scheme in which the money values of the contents of albums are determined through private subjective processes," is extraordinarily complex, though I'm not quite sure that that's what file sharing leads to. It leads to people deciding whether or not to buy something they've already heard. They can't go to Tower Records and haggle just because they've got some mp3s of the songs on the album. And my point is that something like this has gone on for decades. If you really love Top 40 radio, why would you buy anything? They'll just keep repeating the hits every 30 minutes...why should you fork out 16 bucks to tide you over until they play Britney Spears latest again? Why buy something when your friend has a copy and you've got a blank tape/CD-R? Far from normalizing an entirely new system of exchange, file sharing is another variation on an old theme.

"Also, you keep talking about teenage rock'n'rollers as though the Zen Arcades just pop out of the garage fully formed." Well, you keep talking about them as if they're created/determined by the economics of the music industry. I'll concede that it's unlikely a garage band made up of 18 year olds will make Zen Arcade II, but my original point on this topic was that file sharing will not prevent ZAII from coming to market. Am I totally wrong? Well, we shall see. I still think there's plenty of good music around, and let's not forget that Napster was 3 times more challenging to the RIAA than Kazaa (in terms of ease of use, of user base and thus the ability to find almost anything - I'm putting aside the structural and technical issues that make Kazaa more slippery from a legal standpoint).
I agree that none of the later MTX albums have a Marine recruiter on them, though I don't know what insights that fact is supposed to give me. I always thought that the fact that later MTX albums don't have Mr. T on them illustrates the principle of entropy, but that may be a reach.
Oh, and I never said I was from the Bay Area. I am not.

OK, Spacetoast, I give up. I never really intended to argue that music piracy committed by file-sharing is not wrong or immoral or whatever. I guess I still want to say it's somewhat less wrong than stealing of personal property (especially cars!), but if I have failed to articulate a convincing argument for that position up to now, I guess I'm incapable of doing it.

Anyway, my real point was that -- regardless of whether it is more or less wrong than (traditional) stealing -- copyright infringement is different from stealing in important ways, and copyright rights are different from traditional property rights. Specifically, copyright protection is statutorily granted for the sole purpose (I have a feeling you resist that "sole," but I'm not sure why yet) of encouraging further creation, and it is intentionally limited to protect free speech rights and to assure a robust public domain. Neither of those statements is true of laws protecting personal or real property.

That being the case, arguments for increased copyright protection that rely on an analogy to stealing of personal property obscure important distinctions, and do not do justice to the careful balance that copyright law seeks to maintain. The RIAA's lobbying for the DMCA and DMCA-like laws, based on the argument that they have the right to protect their content from being "stolen," is particularly threatening in my opinion.

I do, of course, consider Frank's being able to make a living from selling recorded music a consummation devoutly to be wished. But that's not incompatible with also being a little leery of the goals and arguments advanced by the RIAA and the rest of the "industry."

Marc-

Clarifications:

(1) I realize you weren't going after the ethical end. I was addressing this statement...

"Does that mean downloads = immorality on something less than a 1 to 1 ratio?"

...which I took as a suggestion that an ethical conclusion might be had from just the sales/download data.

(2) I don't know if you don't see what I was getting at with Marine Recruiter or if you just declined my point because I was being cheeky. Either way, in the words of a great songwriter, now let me make this perfectly clear:

First, I really love Everyone's Entitled... I really do, from the grammatical disagreement in the title and remarkable cover art to the last cool/schedule rhyme... But, I submit, and I don't think I'm wildly projecting in doing so, first, that mtx albums have gotten objectively better over the years, and second, that a necessary condition for this development is some sort of expectation that rock'n'rolling could be more than just an avocation, which it necessarily is in the world of garage bands. Maybe we should be taking this to folks like Aaron and Dr. Frank, but I'm pretty confident my conjecture is near target where *most* of the music I really like is concerned.

Aaron-

I think I do understand what you've been saying. Copyright protection comprises a statutorily granted set of rights motivated by utilitarian concerns x,y,z. Statutory construction determines the meaning of holding a copyright vis-a-vis these concerns. Since these concerns don't include any kind of moral or ethical principle about an artist's right to her work, no such moral or ethical principle is part of the meaning of holding a copyright. That's basically it, right? Now, my question is, has been, so what? We are coming full circle to isses and oughts, which I must now really insist on keeping separate. My question, again, is:

If I make a song, why shouldn't I be able to restrict access to it to people who pay me for access to it, as I want to, excepting free speech and related fair use stuff?

Now, I think my question embodies a prima facie conception of how copyrights (or some piece of law occupying that position) ought to work, however they might. I'm not arguing for any particular "moral rights regime" because I haven't extracted any particular set of principles from this conception, but I don't think I have to because I think the conception itself is intuitively very very forceful, and, barring some principle(s) upsetting this conception, the conception stands and copyright infringement in the form of file-sharing is quite obviously equivalent to stealing. If the law doesn't recognize this, then it's pretty clearly the law obscuring things and not the use of 'stealing.'

P.S.

Marc & Aaron-

I hope I haven't come off as too hostile. I certainly don't feel any personal hostility toward either of you, and I've very much enjoyed reading and thinking about your comments. You've both pointed out that debates like this can easily get overheated...true enough. However many Kelvins I'm responsible for here, I apologize, I really haven't meant to personally attack either of you. Also thanks to Dr. Frank both for participating in and affording a forum for this discussion, which I've learned a lot from anyway...

Spacetoast:

"I hope I haven't come off as too hostile."
Not at all - I enjoy the discussion, and I've actually been amazed at how non-offensive it's been. I think the lack of "I steal music. Fuck off" types have kept away, and that's kept things on a different level.
We do seem to keep talking past each other, but that may be due to a lack of kelvin-producing brain power on my end.
now...
"I'm pretty confident my conjecture is near target where *most* of the music I really like is concerned." That's fine, but it seems like it's a separate point. For this to be relevant, you'd have to argue that file sharing will be responsible for interrupting this learning curve; for musicians to realize that music *cannot* become more than an avocation. Again, I highly doubt that file sharing, alone (or even as a significant factor), can be responsible for such a grim realization. If you write a truly great album, you can't expect that it will really sell well. It probably won't. And while it's likely file sharing has some impact on sales of indie rock records, I'm still not convinced it's decisive. It may grow to become decisive, though I doubt that as well.

One more point. You asked Aaron, "If I make a song, why shouldn't I be able to restrict access to it to people who pay me for access to it, as I want to, excepting free speech and related fair use stuff?" Not to speak for Aaron, but here's where his distinction between stealing a car and stealing a song is important. Yes, a radio station will pay royalties and the like, but they then broadcast that song to thousands of people. The artist can't hope to control what those people do with it; they hope it prompts listeners to buy it, but it may not. The point is that people are used to the fact that, in many situations, music is 'free.' You just turn on the radio, and there it is. Part of the problem may be that people honestly don't understand that ripping off albums would actually hurt the artist, but others may seriously believe that it's no different from the radio. The artist has no ability to restrict access narrowly and still make money from his/her creation - that's why the grand theft auto analogy isn't really useful. Not to say that downloading/burning an album in lieu of buying it isn't more closely analogous to stealing the record than turning on the radio, but this just highlights the difficulty of controlling intellectual property in all of its non-rivalrous glory.

Spacetoast -- I get your point (and thanks for stating my argument more clearly than I was able to myself). Anyway, you ask the question:

"If I make a song, why shouldn't I be able to restrict access to it to people who pay me for access to it, as I want to, excepting free speech and related fair use stuff?"

Well, I guess I say, why *should* you be able to? You're certainly entitled to your intuitive sense of right and wrong, but I was sort of hoping for a more reasoned answer.

Also, having the right to "restrict access" is not the same as having the right to prevent unauthorized copying (whatever the DMCA may say). Sure you can physically restrict access to your song -- just lock the song up in a box and don't play it for anyone.

The question is whether, once you have chosen to play the song for people, those people should be able to play it for others, and make their own new songs based on it. Certainly the more people who can play and use your song, the better for everyone, all else being equal. The trouble is that allowing people to freely exploit your song deprives you of the ability to make money from it, and therefore creates a (partial) disincentive for you to write another song. That result, all else being equal, is bad for everyone. Hence, copyright.

Anyway, I certainly haven't taken your comments as hostile, and I hope you haven't taken mine that way. My only objection to this discussion is that it is much more interesting than marking up software licenses, so I'm not getting a lot of work done!

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