Can Justice Scalia Solve the Riddles Of the Internet?

Wall Street Journal ^ | April 1, 2005 | Daniel Henninger

[billorites]

As the berobed Justices of the U.S. Supreme Court sat pestering the suits who came before them days ago to contest Metro-Goldwyn-Mayer v. Grokster...

Conundrum #1: Has the Internet, the most powerful information pump the world has ever known, drowned the incentive to create in words or images?

Conundrum #2: Has the Internet effectively displaced the antique notion of the profit-motive with a newer, unstoppable reality that everything on the Internet is, if it wants to be, "free"?

Conundrum #3: How is it that millions of Americans who wouldn't cross the street against a red light will sleep like lambs after downloading onto their computers a Library of Alexandria's worth of music or movies--for free.

Even writers gotta eat. But this means one has to buy into the validity of eeeek, "profit." Absent that, there's no hope.

New business models like iTunes and techno-fixes such as micropayments matter a lot, but the unshakable reality is that digits and microchips are not like any previous reproducing technology. If you can digitize it, you can grab it, for free.

No matter what the Supreme Court decides about Grokster's 15 minutes of fame, this is a philosophical issue for the long run. The Web isn't just a technology; it's become an ideology. The Web's birth as a "free" medium and the downloading ethic have engendered the belief that culture--songs, movies, fiction, journalism, photography--should be clickable into the public domain, for "everyone."

What a weird ethic. Some who will spend hundreds of dollars for iPods and home theater systems won't pay one thin dime for a song or movie. So Steve Jobs and the Silicon Valley geeks get richer while the new-music artists sweating through three sets in dim clubs get to live on Red Bull. Where's the justice in that?

[Huck]

Thanks. I pay $10 a month subscription to real rhapsody. I get access to millions of songs. I love it, because I am a working musician. I play cover songs at bars, lounges, weddings, etc. I get paid for performing, and thru the vast workings of ASCAP and BMI, the songwriters get paid for my commercial use of their material. Totally fair and square. I just think these are adult babies arguing for their bottle.

[Huck]

Yep. It was wrong.

Thank you.

[lugsoul]

"Because the music I transmit through cyberspace, and grab from there, as well, is made by artists who explicitly allow non-commercial taping and trading of their live material. And there are many, many who do."

Are you illiterate or just too damn stubborn to know you are wrong? Read it again.

Yes, I download copyrighted music. With permission.

I'll await your apology for calling me a liar and a thief. And urge you to read my #31 again, if you read it in the first place.

[kingu]

I play cover songs at bars, lounges, weddings, etc.

Does every wedding, by the by, get an ASCAP or BMI license for your live performance? Every venue? If not, they're breaking the law. You may pay a fee, but the venue as well is required to, otherwise it is theft under the law.

[Huck]

I'm not talking about the law, I'm talking about the moral issue - what gives music or books greater moral protection from theft than a newspaper columnist?

The law is the moral issue. As far as I know, nothing gives one more protection than another, which is why FR must abide by the policies of the copyright holders.

[lugsoul]

The last show I downloaded was a show by Wilco. Here is a statement from their website:

"wilco does permit audio taping and trading of live performances wherever it does not conflict with venue or other restrictions beyond our control. we do not allow direct soundboard patches. we also do not allow videotaping. wilco supports the free trading of live recordings for non-commercial purposes."

I've downloaded and uploaded music by at least a couple of hundred artists with similar policies.

Want to keep calling me names?

[Huck]

ASCAP procedures can be found here, if you're really interested:

http://www.ascap.com/about/payment/whocollect.html

If you look up BMI, I am sure their website has similar info. They collect from businesses, usually on a blanket fee, and then they use their own formulas for determining royalty payouts. As a performer, if asked, I report my playlist to the owner of the venue. Simple.

[jpsb]

Well if you don't make the law reasonable don't expect any one to obey it. Put a reason time on copyright, no problem, put life plus 70 years on a copyright and you can expect it to be ignored. And why should a bar have to pay a copyright fee to the Elvis Presley estate when someone sings You Ain't Nothing But a Hog Dog on Karaoke night?

[Huck]

That's fine. I'm a deadhead. I download their shows all the time. Nothing wrong with that if the band allows it. I simply refuse to believe you limit yourself in that way. Oh, it's possible you do, but I doubt it.

[pyx]

I was under the impression that this USSC case was about being able to sue the MANUFACTURER of a technology rather than the USER of a technology. Sorta like you wanting to sue Ford for $100's of millions claiming whiplash injuries, if I bumped your Lada's bumper with my trailer hitch while backing my F350 dually into a parking space at the local grocery.

[kingu]

The law is the moral issue. As far as I know, nothing gives one more protection than another, which is why FR must abide by the policies of the copyright holders.

Good sidestep; why make a moral judgment when you can rely upon the law to make the decision. How about actually letting us know what the moral difference is in your own opinion, rather than what the law is?

Why should a columnist not get paid for you reading his or her article yet you should get compensation for that same columnist listening to your music?

[Huck]

Well if you don't make the law reasonable don't expect any one to obey it.

And if you get caught and busted, don't expect mercy.

And why should a bar have to pay a copyright fee to the Elvis Presley estate when someone sings You Ain't Nothing But a Hog Dog on Karaoke night?

For starters, it wasn't written by Elvis, it was written by Lieber and Stoller. That means they get paid for the public commercial performance of their song. Copyrights belong to the publishers, not the performers. Performers own their licensed perforance. That means if the karaoke player plays Elvis's version, then the owner of Elvis's performance AND Lieber and Stoller get paid.

Why? Because someone is using their work commercially. Karaoke nights pack the bar.

[Huck]

Good sidestep; why make a moral judgment when you can rely upon the law to make the decision.

You don't think respect for the law is a moral judgement? How far we've fallen.

Why should a columnist not get paid for you reading his or her article yet you should get compensation for that same columnist listening to your music?

For the third time, they should and do enjoy the same rights.

[Huck]

You're right about this case. It's about whether Grokster induces theft. I happen to think they do.

[Uncledave]

"What is the substantive difference between people who post articles on FreeRepublic and people who download music without paying licensing fees?"

Publishers that do not wish to have content posted tell JR who blocks that. Publishers who are OK presumably enjoy the publicity and links.

[lugsoul]

"I simply refuse to believe you limit yourself in that way. Oh, it's possible you do, but I doubt it."

And upon what do you base that accusation?

I got into live music trading the same way, years ago - I still have about 700 hours of Dead on cassette.

Many other artists have learned the same lesson the Dead did - free taping and trading of lives shows helps you make money. Do you think the Dead would have been as big as they were without it?

The sites from which I download the vast majority of my free digital music have and enforce explicit policies against the trading of music made by artists who are not taper-friendly. It is not at all unusual for files to get blocked from those sites for that reason.

But go ahead and hurl your baseless accusations, if you aren't man enough to recognize that you jumped the gun and apologize. It tells all a great deal about you. But I do hope you, as a musician, recognize the potential of technology. It is exactly like my old tape-trading habit, except that I reach a lot more folks and it involves a lot less wear on my electronics. Not everyone can be, or will be, Garth, and the audience for those who aren't - and especially for those who don't want to be - is on the internet.

[tacticalogic]

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;

I wonder what the founder's notion of "useful arts" would have been?

[Huck]

The Grateful Dead invented the policy, and it has served them well. They made their money off of live performances. They were in the top 10 grossing concert list year after year. It was a great model that's been copied again and again.

But in case you didn't know, here's their policy on copyrighted music:

No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means.

That rules out grokster, kazaa, et al.

• All participants in such digital exchange acknowledge and respect the copyrights of the performers, writers and publishers of the music.

In other words, they agree with me, not you.

[Huck]

I wonder what the founder's notion of "useful arts" would have been?

Well, that depends on "evolving standards of useful art in a changing society." ;-)

[jpsb]

"Karaoke nights pack the bar."

Well ASSCAP, BMI etc, have killed karaoke and live music in my neck of the woods. Works out to about a buck a song in fees to have a live band, so the hell with it no more bands. Dido karaoke. maybe the big venues can affort all the lisense fees the music industry wants but little venues that only do bands every now and then can't. So they don't do bands. Also why since it is the band that is playing the music, does the bar have to pay, how is that right if anyone should pay the license fees it should be the band? But it's all a shake down, common sense does not enter into it.