Human Rights and Copy Wrongs
Throughout most of human history, music has been free. Over the past century and a half, the advance of technology has allowed music to be turned into various configurations that could be sold. Now the further advance of technology is pushing music back toward its original, free state.
The advance of technology has been accompanied by massive conflicts over copyright, a war over music and ownership and money with battlefronts in the courts, Congress, and the streets.
Webster’s defines copyright as “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).” The U.S. Constitution says the purpose of copyright is: “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.”
Alex Sayf Cummings steps up as war correspondent in his excellent new book, Democracy of Sound: Music Piracy and the Remaking of Copyright in the Twentieth Century (Random House, $27), a fascinating history of unauthorized reproduction from wax cylinders to digital files.
Cummings makes clear that copyright, unlike its dictionary and Constitutional definitions, has actually always been an elastic concept which has “been the creature of shifting political interests and cultural aspirations—always incomplete, always subject to change.” One reason that’s true is because of the ways that the technology of music distribution runs ahead of attempts to control it. Cummings tells the story of how publishers tried to stop churches from sharing the sheet music that was produced by new forms of printing and how Thomas Edison’s invention of a playable disc ultimately resulted in record companies trying to keep records from being played on the radio. The bootlegging of music expanded with the post-World War II advent of magnetic tape that allowed music to be recorded anywhere, from radio stations to private homes. Yet the record industry didn’t get around to having Congress give it a copyright for its products until 1971.
The rise of the Internet eventually led the Recording Industry Association of America (RIAA) to launch an ongoing avalanche of lawsuits against music fans who allegedly had traded music files. This was and is nothing but a con game. The Internet was developed entirely with public money—the taxes of the very people who download music. The infrastructure and all of the key initial software came out of public institutions. Ironically, the Internet was created for the specific purpose of trading files. In 1995 the Internet was handed over to commercial interests with the blessing of the Clinton administration. In the wake of this hijacking, the major record labels asserted their right to control the flow of music online by right of ownership, ownership which they, at best, coerced out of the hands of its creators. Now they use the Internet we paid for to spy on us in order to be able to persecute us.
This is completely backwards. The music industry should have to pay a royalty into the public treasury for its use of the Internet to promote and sell music. They could use the money they’ve bullied music fans into paying them for the “crime” of sharing music. It’s been quite profitable. For example, they sued students at Rensslaer Polytechnic for $98 billion each and then settled for $15,000 apiece. There’s plenty of money in the RIAA till since not one penny of the tens of millions of dollars they’ve extorted from music fans has gone to artists.
Betsy Sherman, while working for Warners searching the Internet for music web sites to bust, told Rolling Stone that people should pay for music because “that’s how we interpret having respect for things, isn’t it? That we pay for them?” Does she mean that buying slaves meant that the owner had respect for them? Or that if I download music for free by Miles Davis or Metallica that I don’t have respect for them?
Edgar Bronfman, the head of Warners Music Group from 2004 to 2012, would probably agree that his children have no respect for music. When he was asked by Reuters if any of his seven kids “stole” music, he replied “I’m fairly certain that they have, and I’m fairly certain that they’ve suffered the consequences. A bright line around moral responsibility is very important.”
It took quite a bit of dexterity for Bronfman to clamber up to the moral perch from which he slanders as thieves not only his own children, but the hundreds of millions of people worldwide who download music without paying for it. The Bronfman family fortune, which allowed young Edgar to buy his way into the music business in the first place, came from running booze during Prohibition (i.e. it was illegal). Companies headed by Bronfman have faced legal sanction for fixing CD prices and for paying bribes to radio stations in return for airplay. The only consequence he has suffered is to see his net worth soar to over two and a half billion dollars.
The RIAA also attempts to dance the moral mambo with its claims that sharing music is the cause of “a drop in CD sales, thousands of layoffs at record companies, and huge declines in royalty income for artists, songwriters, and producers.” Yet in 2003, with file-sharing persecution in full swing, a U.S. District Court found that record clubs owned by BMG and Sony had failed to pay an estimated $100 million in artist royalties. Cheating artists remains the financial bedrock of the music industry.
Meanwhile, poor consumers in Asia, Africa, and Latin America (or, say, Greece, with its 27% unemployment rate) may not have a computer for downloading or the money to buy a made-in-America CD, so they buy a pirated CD at up to 90 per cent off. Similarly, in the United States where computer access and portable digital hardware are common not just on campus but in poor neighborhoods as well, music often floats from one set of ears to another without money changing hands. Everywhere, from Chattanooga to Cairo, the driving force behind the free sharing of music is poverty. As Steve Morris, an American University student, told the Washington Post: “We don’t care. CDs are so expensive and we’re so poor.”
The U.S. government, which so casually gave away the Internet in a precursor to the current tidal wave of privatization, has made laws to guarantee the corporate control of cyberspace. The Digital Millennium Copyright Act (DMCA), which was passed unanimously in the U.S. Senate in 1998 and signed into law by Bill Clinton, gutted fair use. In addition, for the first time it became illegal to share music online even if no money changes hands.
Compare this to the Bill of Rights. Under the Fourth Amendment police must show probable cause that a crime has been committed before they can get a judge’s permission to search your home for evidence or to subpoena you to appear in court. Under the DMCA, all the RIAA has to do is to file paperwork with a court clerk to get a subpoena if it suspects you of downloading music from the Internet. The NSA has nothing on the RIAA, which helped to pioneer the massive searching of databases filled with personal information about our music choices.
The DMCA is part of the growing police state and it is a law which inherently encourages abuse, abuse which can be deadly. In 2003, African immigrant Ousane Zongo was shot dead by police in New York after being wrongly suspected of hiding pirate CDs in a Chelsea storage locker. The undercover cops who took his life were on the scene doing the dirty work of the music industry, which should share in their guilt. Which wasn’t much--NYPD officer Bryan A. Conroy was sentenced to five years’ probation and 500 hours of community service.
This abuse takes many forms. I frequently get promotional CDs from record companies with no information about the music but lots of threatening legalese which makes it clear that I am presumed guilty of some crime as defined by the RIAA. None of us are safe.
The music industry’s phony moralizing is designed not just to put a fig leaf over their greed but also to drive a wedge between musicians and fans. Sometimes it works. Metallica sued Napster for $10 million for allowing the band’s music to be shared and successfully demanded that over 300,000 Napster users who had traded Metallica music files be banned from the service. Not bothering with the courts, when rapper Joseph “Run” Simmons of Run-DMC found sidewalk pirates selling copies of Back from Hell before it was released he confiscated the merchandise.
But most musicians are looking for ways to share their music, which record companies have prevented them from doing on many occasions. Southside Johnny explains the position many artists are in: “The record companies own all the masters of my albums. They are called catalogue. The more catalogue a company has the greater its assets and the greater amount of money it can borrow from the banks at a friendly rate. My records are just part of the vast catalogues of a number of companies. They don’t release them because they don’t think they can sell enough of them to make any profit. But they won’t sell them back to me because they want both the catalogue power and the tax write-off for inventory. I encourage you to burn copies for anyone who really wants a CD.”
The needs of fans and musicians are fundamentally the same. The real wedge is between both of them and the music industry. At the Congressional Napster hearings Roger McGuinn revealed that although as a member of the Byrds he recorded several Top Ten songs, he had never received a royalty check in his life. At the 2002 Los Angeles hearing of the California Senate Select Committee on the Entertainment Industry, Backstreet Boy Kevin Richardson testified that he had never received a royalty check. A member of the Olympics explained that although the group’s 1960 hit, “Hully Gully,” had appeared on 94 different compilations worldwide, he had never received any royalties. Don Henley of the Eagles, despite a threat by the RIAA to sue any artists who shared information with the committee, presented a copy of his most recent royalty statement which showed an $87,000 deduction for free goods in Europe even though Henley’s contract called for no free goods in Europe. The beat goes on today. David Lowery of Camper Van Beethoven says that “My song got played on Pandora one million times and all I got as a songwriter was $16.89.”
It’s not just musicians who are being ripped off, but fans as well. In 2002, the record industry cartel reached a settlement of a price-fixing case brought against it by 42 states. It cost them $67 million in cash, a drop in the bucket compared to the money they gouged out of consumers by jointly conspiring to sell CDs and tapes at identical high prices or to the money saved by not paying royalties to artists.
One reason artists are freaked out about fans freely sharing music is the high cost of their health care. One reason fans need file-sharing is to eliminate one expense in their lives in case they get sick.
Several years ago, a group of rock stars gathered in Sacramento to lobby the California legislature to change contract law to prevent recording artists from having, legally speaking, less freedom than indentured servants. But according to a union official who was present at a pre-hearing meeting, the main thing the musicians there discussed was health care, especially the lack of it. Health care for themselves, their sidemen, their parents, their siblings. There are over one thousand musician-for-musician health care benefits in the United States every week, all of them supported by music fans who themselves may not have health insurance. Yet all the executives at the corporations which make up the RIAA get fully paid health care, paid for by revenues generated solely by artists.
But even if you toe the music industry line and pay for your music, you still don’t own it. Sales of digital music are considered to be licenses, not possessions. This gives consumers little or no ability to (legally) share the music they’ve bought. Similarly, only a handful of superstar artists own the music they have so painstakingly recorded. Musicians are forced to go deep into debt to the record company in order to be able to make their records. It’s written into their contracts as part of the price they must pay to go into the studio.
The way that the love of music is turned by industry lawyers into a broken heart is epitomized by the situation that was faced by Andy Jordan, unemployed at the time his son was sued for downloading music. Jordan, a record collector, told Rolling Stone: “The first single I ever bought was ‘Monster Mash,’ on Garpax Records. Garpax was bought by Parrot Records, which in turn was bought by Warner Music Group. Which is now suing my son.”
The role of the artist is to make music. The role of the fan is to support the artists and the music they create, sometimes by buying a concert ticket or CD, sometimes by sharing their passion by word of mouth or mouse click. But what about the music industry? They serve no useful purpose and get in the way of our need to bathe in the healing waters of music. Our brains are specifically hard-wired to embrace music, just as other parts of our brain tell us when we need food and water. Music is something we’ve got to have. Why should corporations and bondholders be allowed to keep it from us?
While the file-sharing wars may have faded from the headlines in recent years, the copyright cops are still hard at work. Last month the RIAA filed lawsuits against 762 alleged file sharers, once again saying they are doing it to save jobs and funnel money to artists.
In a 2004 Billboard commentary, Todd Rundgren dismissed the RIAA as a “gang of ignorant thugs” and added that “It’s time to let the monolith of commoditized music collapse.”
It is, of course, already collapsing as every advance of technology has moved us closer to Alex Sayf Cummings’ “democracy of sound.” This democracy involves giving us a choice in where we hear music—the invention of the transistor allowed for shirt pocket, portable radios just as tape players in our cars turned daily driving from sheer drudgery into an uplifting concert experience of our own choosing. The microchip and advanced digital technology now allows us to go from consumer to active participant. We are free to champion and share any music we like, not just the deliberately narrow range of sounds that the music industry shoves down our throats. This democracy is now economic as well, since you can give someone music and still keep it for yourself. The steamrolling momentum of musical democracy has brought forth a totalitarian response from the music industry and the politicians it purchases off the rack. They are determined to turn back the clock to the time when they made all the choices and had complete control.
In 1997, then-RIAA CEO Hilary Rosen wrote in Billboard: “Until the appropriate balance between free-flowing information and intellectual property is struck, the Internet can never achieve its potential to become a viable medium for the sale of music.” Leaving aside Rosen’s self-serving definition of the purpose of the Internet (at the time she was buying a $2.5 million home in the D.C. suburbs), there will never be an appropriate balance between “free-flowing information and intellectual property.” The two are incompatible. They are at war.
There are only two choices. We can run for protection into the arms of an obsolete, corrupt music industry that, through high prices, payola, censorship, and narrow artist rosters keeps us from hearing most of the music made on our planet. Or we can embrace, with open arms, the new technology and its potential to make all the music available to all the people all the time.
“Copyright interests in the late twentieth century,” Cummings writes, “supposed that people should not learn, feel, or experience any expression without money changing hands. Pirates suggested otherwise.”
But “piracy” is only the beginning. We should envision a world beyond copyright because the world which gave birth to copyright no longer exists. I say that as someone who owns hundreds of copyrights. In fact, I assume that this very article will be “stolen” and shared. I certainly hope so.