Why the Record Industry Doesn't Stand a Chance

Newhouse News Service ^ | Aug. 19, 2003 | JAMES LILEKS

[new cruelty]

Forget Napster. The newest place to steal -- sorry, "share" -- copyrighted materials is Earthstation 5. They claim 22 million downloads of their software, offer digital copies of movies still in the theaters, and boast that no one will be able to shut them down. They may have a point.

They're located in the Jenin refugee camp on the West Bank.

You can imagine the discussions in the Recording Industry Association of America's legal office: "You serve them with papers." "No, YOU serve them." (Pause) "OK, we'll send an intern."

Earthstation illustrates the problem the record industry faces: It's a big planet, it's wired together, and it's filled to the gunwales with pirates.

You've heard of Napster? So 2001. Now there's Kazaa. Now there's Grokster, whose corporate location in the West Indies just screams, "Come and get me, copper!" There's Blubster, another music-swapping program provided by a company in Spain. The day there are two servers in Greenland, the second will be devoted to letting 20-somethings in a Vilnius dorm room download Metallica songs.

The recording industry hasn't just lost control of its product; the product itself has lost its reason for being. The CD is as dead as the album, and for the same reason: Most bands have one or two good songs, a couple of so-so numbers and a half-dozen tracks of dreck you'll never hear again. We all know what CDs cost -- you can get a hundred blanks for a sawbuck. So why does the disc cost almost 20 bucks? Well, there's the cover art, the distribution, the advance to the artist, the cost of catering a five-week recording session for a band made up of ultra-vegans who eat only imported Irish loam, and of course the all-important $19.99 PROFIT.

You can't begrudge them a profit, of course. It would be nice if it trickled down to the average recording artist as well, but let's not be silly dreamers here. What really plagues the industry is an antiquated business model that requires putting out 10 tons of overpriced junk in the hopes that 3 ounces will make 11 tons of money.

But no one wants albums anymore. They want songs.

Unfortunately, they want them for free, and that's where the RIAA steps in -- with hobnailed boots. They've threatened file-sharers with huge fines for each download, meaning that kids with 30 gigs of "shared" music could face fines equal to the gross domestic product of sub-Saharan Africa.

The downloaders insist they have the moral high ground; they'll complain about the cost of the product, the unjust contracts musicians sign, the shoddy treatment the industry gave Blind Willie Simon in 1937, etc. They'll sniff that the musicians should give away the product and make their money touring, which is akin to saying restaurants should give away food and make their money selling souvenir forks. They'll craft shaky analogies to libraries -- as if the public library lets you take a book, make a perfect copy, and give it away to 4,982 people.

It's all a justification for the Internet's eternal problem: No one wants to pay for anything unless that something is nekkid women. And even then they'll complain about the price.

So what's the solution? Congressional hearings, of course. That'll fix everything! The creepily named Senate Government Affairs' Permanent Subcommittee on Investigations will soon hold hearings on the RIAA's dilemma.

But get this: The subcommittee's chairman thinks the RIAA is being "excessive." And he's a Republican -- Sen. Norm Coleman, a Minnesota solon who admits to having used Napster himself.

Coleman has a point; copyright laws permit fines up to $150K per tune. There's no sense in suing some kid eleventy million bucks for file-swapping songs. On the other hand, no one is going to stop stealing music unless he's scared of being arrested, sent to jail and forced to share a cell with a smelly old hippie who sings Mungo Jerry songs all night.

But there will never be enough arrests or convictions to stop the hard-core downloaders; there will never be a technological fix that someone won't find a way around. Copyright violations will cease when enough people decide they're morally wrong, when the old explanation -- "But Ma, even senators do it!" -- doesn't feel right. When the Internet is governed by reason, decency and conscience.

Never, in other words. See you in Jenin.

[George W. Bush]

I wish I could record a days work and then sell it over and over again whenever someone needs a job done. Every time you go home you should pay the carpenter.

Ummm...but you would get paid every day for the rest of your life and for 70 years thereafter. Unless they've extended it yet again recently...

[George W. Bush]

Okay, that takes us from theft to sloth ;)

Fortunately, I'm a Calvinist. But I think the Arminians should be worried.

[xzins]

I am your paragon of virtue regarding copyright xeroxing.

However, I'm guilty elsewhere. As is everyone.

But my being sinless or sinful has nothing to do with the pure question: am I taking something for my personal use without paying for it when there's the expectation that I pay for it?

We all know our own intent.

There are no modifying clauses in the 8th commandment.

[FoxPro]

Actually, the industry that will be in real trouble is the porn industry. Think about it, anybody with camera can make a porno film and put it on the net. And most of the time the stuff the swingers are making in their living rooms is better than the stuff the big porno industry is putting out with their fake boobs and Peter North in every other film.

The variety is refreshing, and well stimulating.

[George W. Bush]

Copyright for things that are considered to be news related is a lot looser than for anything else. The CW being that news itself can't be copyrighted therefore copyright of one "presentation" of the news is weakened dramatically.

Good point. But last I knew, they still had the 'fair use' policies that allow excerpting in other news reporting or for quoting in books. But I think the legal limit is still 500 words. That's what the writers complain about last time I read any complaining about it.

FR on its best day couldn't meet that standard. Never has.

Don't get me wrong. I don't disapprove. I just think that news pirates shouldn't get huffy about music and video pirates.

[Revolting cat!]

How sad to instead go buy a piece of plastic and sit in front of an electronic sound reproduction system...

Good post. It's the great tragedy of our 20th/21st century lives - to have become nothing more than consumers of others' creative efforts. It still makes me wonder remembering that an individual who appeared to us so stiff, so humourless, so uncomfortable in his skin - Richard Nixon, was actually a pretty good piano player. What to do?

[eno_]

So that makes it ok to take their music without paying?

Short answer: Yes.

Longer answer: The legal atrocities of the DMCA drain the legitimacy out of arguments that it is not OK. The history of music indicates that damage, on a societal scale, will be minimal, and there will probably be benefits that outweigh any damage. So, yes, it is OK.

[eno_]

I wish I could record a days work and then sell it over and over again whenever someone needs a job done.

I used to be a consultant, until it made me feel too dirty.

[xzins]

If so, then shoplifting at any corporation I deem "atrocious" is OK.

[George W. Bush]

Newsgroup usage is growing.

Go to IRC. When they crack the whip on that, we'll have the FreeNet encrypted untracable IRC stuff ready.

And if you can get access, there are fully encrypted web sites starting up too. Places like HushMail.com are starting to offer fully encrypted domains with their own 2048-bit encryption overlaid on top of IE6's 128-bit encryption. No IPs recorded, everything anonymized...

[discostu]

A lot of times it's crappy music, but there's that whole tie and a place thing. That's always, to me, been the power of Martin Scorcese as a director, he's always been so good at picking source music (that's movie speak for music that wasn't written for the movie), with it he can tell you exactly when a scene is happening (sometimes down to the month) and wrap it in historical context, and also give a whole emotional subtext.

I tried learning to play an instrument, just not happening. Some of us are not musically talented and still enjoy music. Anyway, no matter how good I got at playing an instrument I could never construct the intricate weavings of guitar flute and piano of my favorite band, if only because I can only play one instrument at a time. Also I can't perform music while I work or drive.

I don't think it's a matter of consumer being king, people are still learning instruments and performing music and writing original stuff, the vast quantities of new bands showing up every month shows that. What's grown since the invention of the LP is people's ability to enjoy music even if they can't create it.

When I play a great piece by one of the great performers the performer and his work live again, in me. He is just as alive in that moment as he ever was. His music still makes its points. The difference is not everybody can play music, it's a talent as much as it's a skill and not everyone has every talent.

It's not sad at all. It's great. I get the communication with someone I will probably never meet. I get to listen to it whenever I want. And I can hear it exactly as they intended with none of my faults or errors. And if I really want to play it the sheet music is out there somewhere, then I can play it or listen to it, or both.

"Real" music hasn't gone away. We now have more ways to enjoy and experience it. You're lamenting something that isn't gone.

[discostu]

Fair use is pretty fuzzy. It's not so much legally defined as vaguely outlined via test cases. Most of those limits are primarily applied to cases where the violator is profiting from the violation. The fact that we give credit and link back to the original gives us even more wiggle room.

[SauronOfMordor]

Also, most of the folks in the music and film industries are raving liberals/socialists. I remember during Hillary's health care insurance scheme debate, numerous film and recording stars were supporting her (and the industries overwhelmingly donated support to the Clinton's). Now, as a physician, I'm offended by the fact that these folks seem to think that its OK for the govt to steal the product of my labor, but its an outrageous violation of intellectual property rights for teens to swap MP3s.

good point

[CanadianLibertarian]

Bump for this article! Jenin, West Bank LOL what aplace to put a download server.

[George W. Bush]

It's the great tragedy of our 20th/21st century lives - to have become nothing more than consumers of others' creative efforts.

Personally, I think I'm too oriented toward mass culture myself but I know a lot of people who really can do absolutely nothing for themselves. Not just music but handcraft, art, etc. I just think it's sad because they're not stupid or lacking some talent in some area. Almost everyone has potential. The sad thing is that they sell themselves short for the cheap and easy thing.

It still makes me wonder remembering that an individual who appeared to us so stiff, so humourless, so uncomfortable in his skin - Richard Nixon, was actually a pretty good piano player. What to do?

For a second, I thought you might know me in real life. ; )

I guess we remember Nixon as a crook who happened to play the piano well. But Truman was better known and there are a few clips of him playing. I've never seen a clip of Nixon playing but I wouldn't be surprised if he was quite good. He was mentally devious, something of an artistic quality.

[eno_]

Only if you can also show there is no actual damage.

[MoJo2001]

LMAO! I already know about the IRC groups. I won't divulge anymore about that, but you are right. The people in some of the channels just live to ruin the RIAA and MPAA's day. Can you say .rar files? Hehehe!

[cinFLA]

Anyone who's been to Hong Kong knows the meaning of copywrite!

Not compared to Indonesia.

[George W. Bush]

The fact that we give credit and link back to the original gives us even more wiggle room.

It may seem to. But it could be readily demonstrated by subpoenaing FR's weblogs that very few ever visit the original site which paid for the syndicated column or article. Naturally visiting the site is considered payment since you see the ads, allow them to plant spy cookies on your machine, etc.

I'm a case in point. In excerpted articles, I probably only go read the source about 1% of the time. And only when I can't use Google to retrieve a copy remotely. You can, for instance, still use Google as a backdoor to the New York Times. I'll avoid mentioning any others that are available in this way. And there are other means to avoid ads/cookies as well.

You come close but it's no cigar even in an area that is murky and that keeps changing.

[George W. Bush]

The people in some of the channels just live to ruin the RIAA and MPAA's day. Can you say .rar files? Hehehe!

Yes, 'orrible, 'orrible, I say.

Of course, I only go there to sniff my disapproval at them. I'm sure that's the only use you make of them too...