In an imaginary parallel universe where everything is the same but the Pirate Party doesn’t exist, I’d still be slightly optimistic about how the entire piracy vs private industry abuse fight has been going lately.
Three, or maybe four or five of you, may not have already heard how Jammie Thomas-Rasset was sentenced to pay $1.92 million for having shared, and thus infringed on the copyrights on, 24 songs. This sum — $80,000 per song — is so unsubstantiatedly princely that even one of the artists involved in the evidence who happens to agree with the verdict on principle publicly shames the claim and distances himself from these shenanigans.
The purpose of the ridiculous sums are two-fold:
a) To set an example and coerce people out of widespread behavior
and, to a lesser extent,
b) To recuperate some of the losses from an alleged statistically reliable, obvious and therefore missed conversion from “illicit download” to “karma friendly purchase”.
Both branches are demonstrably wrong. Let’s take a), the technical progress that enabled the behavior to appear can’t be rolled back, and people aren’t scared of being sued; in the extreme cases where they are, they are also either forgetful or resourceful. The funny business will continue no matter what happens.
As for b), this subdivides further. The conversion may look obvious on paper given that the business model is established, but there are several possibilities. We all know by now that there’s no guarantee that any download would have resulted in a purchase or for that matter even precluded a purchase. There’s no model to calculate an accurate number, so one has to be pulled from… somewhere.
And we also know that for the purported losses, which can’t be proven to not be imaginary, to be recuperated, if the given amounts are correct, they’d have to end up with way more money. The road towards that goal forks; either you search higher damages (which seems unlikely, given the unrest in everyone involved, including the judge, in accepting the sum as ‘fair’ already) or you file more cases, which to approach the sufficient volume would hold up courts that could have been righting more egregious wrongs, and which is practically hard since bringing each case involves effort and attorneys.
There may also be a slight pulling sensation in your public perception.
Let’s say even that the music industry is right: the claims are substantiated, and the sums, in the face of the sheer heinousness of the crime, are actually fair. Now what are they going to do? They’ve still got practicality, public opinion and increasingly their own pool of artists against them.
And artists aren’t fools. Some, maybe even most (it’s hardly a homogenous group), may feel threatened by the direction reality is heading. But many are taking precautions, and many more still are actually being made tenable by the recent development. Did you know that when you buy a cassette tape or a CD-R in Sweden, a small portion of the price goes, ear-marked, to a special music industry organization for composers? Did you know that, for anyone to cash in on that, and by way of being a large organization named in a prominent law, in effect calling yourself a composer in the first place because you’ll have trouble and be at a competitive disadvantage selling anything otherwise, you’d have to join that organization and accept their terms? And did you know that up until very recently, that blocked you from placing your works under Creative Commons-like licenses in order to explicitly allow things like remixes and sampling which not only has the potential of spreading your work and giving you more consumers and customers, but actually on a macro scale, thanks to the way the human mind works, is what creation is about in the first place?
I’m thinking about how this will play out into the future and it occurs to me that the wins are pyrrhic and elusive. The industry actually hurts less when they’re awarded losses. A reasonable win is too hard-fought and brings in too little money; other wins just turn your putative customers into new plaintiffs because they don’t want to deal with cold and bloodthirsty. The artists themselves are already headed en masse for the ejector chair and the good ship Independent.
At some point, either politicians are going to have to be lured into penning the industry more and more odious laws (which, per previous paragraphs, won’t actually solve anything but will happily trash the system while waiting, and per the very first paragraph and related efforts will only actually work for so long), or the matter will have to be dropped. Lumps taken. Sour medicine tasted. Lesson learned. Democracy restored. Lemonade, finally, made.
What’s most interesting about the verdict to me is how patently unconstitutional it is. When assigning damages above real damages, you can’t use a high sum in an effort to deter anybody but the defendant from engaging in the behavior accused. So if the defense can, on appeal, demonstrate that the RIAA’s motive was to obtain a high enough verdict that others are discouraged from engaging in filesharing, they will have an easy time getting the damages thrown out. Whether that’s good or not remains to be seen; she obviously can’t pay the sum now, but if an appeals court reduces the award to a sum anywhere near reasonable, she might find herself stuck with a bill that she can reasonably afford to pay within her lifetime — barring things like feeding her kids, of course.
By Kyle · 2009.06.25 01:47
Jesper,
I’ve sort of been waiting to post this link (not just to you, but in general — now seems like a good time).
It’s from an “underground” musician that I respect a lot. I’ve loved the music his band has made since I was a teenager, starting 15 years ago when I first heard it.
It’s not directly related to anything you say specifically here. It’s just related generally. In particular, I found it interesting that an independent artist says something along the lines of “they promised us merch sales would go up, but we haven’t seen it” in regards to spreading the music for free.
It’s just an interesting perspective, from someone in the trenches, who’s in a position to benefit from the ways piracy is said to help independent artists.
Here’s the link: http://benweasel.mu.nu/archives/288429.php
I’d love to hear your thoughts. I’ve really enjoyed reading what you have to say about this stuff over the last several months+.
By Sammy Larbi · 2009.06.25 03:18
I’m not sure what to say to that. I know that I’m more likely to buy music from people who don’t have a problem with me, or anyone, downloading it, but what do I know?
I’m sure that mutual disrespect is holding a lot of music fans and a lot of artists apart. What I’m not sure is to which degree, and how you go about fixing that. It’s definitely not the case that, of those deciding to open up, people who do succeed do so because they’re being open and people who don’t do so because they’re crap — others have made that argument but I don’t buy that, even though it’s probably true for someone.
For me, it’s not about putting everything you have online for free. You don’t have to do that: it’s your stuff and you decide how you want to expose it. It is about not losing your cool when you see that people are distributing your stuff. They always have been, and there are numerous other ways of hearing your stuff without paying for it, and they all add up to help spread it and attract more fans (if it didn’t, radio would have failed by now). It all greases the wheels, but it only makes it easier for you to succeed, it doesn’t guarantee it.
I can certainly sympathize with the last few sentences of that post, and I don’t think he’s expecting manna from heaven just for opening up, but I do think that he’s been promised that by some people. It’s always frustrating when you feel that you’ve made efforts to improve and that it’s been in vain.
I hope I never came across as promising such things. My message is that a market that’s based on respect and reality rather than what we have now (there’s room for improvement in both ends, but the lawsuits and attempted surveillance and censorship laws by one end is a bit more apparent) is likely to have more people succeed and less people waste time and energy being upset about something that they could use as a possibility. People won’t grow resources enough to pay for everything they download, just like they don’t pay for everything they listen to on the radio or at a friend’s house. The reason Ben Weasel is mad is not because any of that’s controversial, it’s because he’s been promised more.
By Jesper · 2009.06.25 07:11
I’ve always seen it as much like speeding or fare-dodging – and it needs to tackled in the same way – i.e. a fine small enough to annoy, but not worth fighting in the courts.
Equally, speeding is a crime we are all guilty of some of the time, but at the same time, we do not drive 80 in a 30 zone – we all have ‘limit plus’.
To me, we have a choice of 3 things : 1) Implement technology to ENFORCE the law (which we – as technologists – do not want – as we understand the consequences would effectively mean the end of computers as we understand them). 2) Use the legal system to enforce the law – which means accepting some means of their being a realistic way of getting caught. 3) Changing copyright law to decriminalise sharing / ripping – which means accepting that we’re going to have to find an alternative way of funding the creation of works to go directly into the public domain.
Now of course, the vast majority of argument on the internet is in favour of (3), but even the Pirate Party run off and hide in a corner when it comes to the second part. If you accept the old system is screwed, you need to have a mature discussion about the second part.
Increased DVD or vinyl sales are just a temporary distraction (they are sales to people who have a nostalgia to own ‘the real thing’) – they are buying time.
As for the point about composers – it doesn’t cost much to register yourself as a composer with a collection society. It is not so different from a union – the songwriters and composers collection societies have stood up to both the record labels, and Apple, in their push to LOWER the royalties paid out. You don’t HAVE to join the union, but you do need to join it to enjoy the benefits of membership. (The problem is, perhaps, that unlike unions, companies can also join, which distorts the organisations – they become a mix of composers, and publishers who own composers under contract).
By JulesLt · 2009.06.25 08:33
In Sweden, I’m told that it’s practically impossible to get work as a composer if you’re not in the specially appointed union/society/collective/whatever. No customer wanted to be painted as “not giving the composers their due”, and if you’ve got a history, it’s harder to contract “proper” composers. There are presumably many independent guilds, but the designated one has a documented legacy of strong-arming and abuse.
That’s why it sucked so much that they could legally prevent you from choosing a license that you deem fit for your own work. They still can — it’s just a few of the Creative Commons licenses that have been special cased.
As far as the rest goes, I wish I had a crystal clear replacement business model. In the absence of one, it’s worth repeating that it’s not completely impossible to make a living. Most of the successful kindred artists do actually sell their music, and I spent my last comment highlighting how I don’t think it’s necessary for people to give it away. It’s just about putting away the lawyers for a minute.
Let’s go back to what a big label will get you. They will be a big help on getting the word out, distributing the music, forming the abstraction that when you have a concert, it’s just you and your instrument performing, producing and mixing the record, and streamlining the process by having many other artists on the line, enabling them to make some things up in volume.
The recent breakthrough hasn’t been about making these things disappear, but of making them easier to arrange yourself. You can easily distribute and market to a much more targeted crowd, you can produce for equipment that, while pricey, is still within reach.
Where the equation does fall down currently is here:
Even though you may get more of the “artist’s share” in a comparison, you now have to pay for everything with that share. Once that’s taken away your final share may be lower. (Or higher.)
It’s a mug’s game trying to establish if your fans and your listeners will actually turn out to want to pay you money. I’m not denying that there are cheapskates. But when downloading is a must to even listen to the music in the first place, you can’t tell those who are just listening from those that are rabid followers that just can’t or won’t pay.
I’m fairly confident that the two issues will turn out better over time. The costs of ‘being a label’ continues to fall, and the number of reasonable independent labels continue to rise. And as the music industry returns to its obsession of producing, remixing and spreading the music, and not of extracting money in return for it, polarization will fall, the mutual respect will once again build up, and people will feel more at ease. (It’s never been so easy to tip an artist even if you don’t like any of their t-shirts.)
By Jesper · 2009.06.25 20:07
With regards to Sammy Larbi’s link: Nobody knows what will happen to music, but a recent Harvard study shows that weaker copyright laws lead to more creative output:
http://www.michaelgeist.ca/content/view/4062/125/
As for the specifics, perhaps artists will find different ways of making money. Perhaps online stores will allow artists to make more profit with fewer sales. Perhaps only bands willing to take a loss will continue to make music. Perhaps all of the above. But what is clear is that music will not go away, and if anything, will likely become less generic. For me personally, this has already happened. The Internet has allowed me to find artists I would not normally have discovered, and technology has allowed local bands to produce professionally recorded albums despite a small target audience. I haven’t bought any major label music in perhaps a decade, but at the same time, I am buying more music than ever before.
By LKM · 2009.06.25 23:25