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The music industry needs to change the record
By John Kay
Published: June 2 2004 5:00 |

Lawrence Lessig's new (downloadable) book on intellectual property has created a predictable furore. In an angry letter to this paper (24 May) David Munns, vice-chairman of EMI, accuses the Stanford University law professor of condoning theft.

Mr Munns is wrong. English law, following common sense, requires that a thief have an intention of permanently depriving an owner of his property. File sharers have no intention of depriving anyone of his property. Nor do their activities meet the further test that the reasonable man would think them dishonest. Parents who would be appalled if their children stole records from the Virgin Megastore condone their music downloads. The most that can be said is that file sharing deprives record companies of sales they might otherwise have hoped to obtain. The everyday word for that process is not theft, but competition.

The analogy with shoplifting is further strained because the shoplifter has the legal and socially approved alternative of queueing up at the checkout. File sharing took off not just because it was cheap but also because it was the only way to download music. Established companies tried to protect existing channels of distribution. Fortunately, they failed.

The copyright lobby has acquired its power because it has persuaded creative people that it defends their interests. I remember upbraiding a colleague who was using pirated software: I argued that we had a common concern to protect intellectual property. But I was mistaken. The law protects computer programs but not the ideas of a think-tank. That is why software businesses are well endowed and think-tanks are not, except for those that lend support to arguments such as those of Mr Munns.

The claim by the music business to maintain control of every subsequent exploitation of its product has no more moral basis than the claim of a think-tank to control every subsequent expression or development of its ideas. Or the right of Trinity College, Cambridge, to approve every application of calculus, the invention of Isaac Newton, its late employee. Far from stimulating creative effort, such restrictions would paralyse it. The unreasonable nature of the assertion and its unenforceability reinforce each other. This pretty much describes the music industry's situation. So it will be the first industry to be genuinely transformed by the internet.

The consequences are hard to foresee. The reductions in revenue that follow from the loss of control by publishers will be partly offset by increased demand stimulated by the lower costs of distribution. The very wide differentials between the successful and the less successful in creative industries will be eroded. It is Tom Clancy and Eminem, not writers of academic monographs and would-be rock stars, who stand to lose most from unauthorised copying. The high costs of marketing and distribution through traditional channels have made it hard for minor artists to establish themselves. But an online retailer can easily stock far more titles than even the largest shop. So it is likely that lower distribution costs will mean a smaller royalty pool shared between many more artists.

The law, again following common sense, recognises moral issues in copyright. Newton would have no justification for preventing others using or developing calculus, but he (not Trinity College) does have a right to be recognised for his contribution and to have his own ideas fairly presented. These moral rights - the ones asserted in the title pages of books - are distinct from the economic rights that publishers acquire from authors and artists.

The purpose of these economic rights - and this is the essence of Prof Lessig's argument - is to strike a balance between the various public interests in promoting innovation, stimulating creativity and achieving the widest possible dissemination of new material. It is on these grounds, not sanctimonious moralising or false analogy, that publishers need to argue their case. After a decade in which media conglomerates have sought to block innovation they did not control and proliferate imitative material at the expense of genuine originality, they need to improve their performance substantially to justify their claims to the legal privileges denied to think-tanks and Isaac Newton.

www.johnkay.com

"Mr Munns is wrong. English law, following common sense, requires that a thief have an intention of permanently depriving an owner of his property. File sharers have no intention of depriving anyone of his property. Nor do their activities meet the further test that the reasonable man would think them dishonest."

This has been a point I have drilled and drilled home as much as I can. There must be a mens rea...a state of mind indicating culpability. But, beyond the mens rea, the fact that file sharers DO NOT permanently (or even temporarily) deprive the owner of property, points that this is not theft.

If you copied a few pages from an encyclopedia in a library, and started to walk out, and bells and whistles started ringing and librarians started hollering "STOP THIEF" and the police arrested you and you were taken to court with a charge of theft, do you think a jury would find you guilty?

Filesharing has the ability to level the playing field between the major record labels and the independent ones...but this would mean "a smaller royalty pool shared between many more artists." Good. "The most that can be said is that file sharing deprives record companies of sales they might otherwise have hoped to obtain. The everyday word for that process is not theft, but competition.
" So, what we would like is a level playing field. The RIAA would prefer to just level it (and us). I really like this column, and I think more and more people are beginning to understand our position. Thanks, tomsong.

"...while the Internet has indeed produced something fantastic and new, our government, pushed by big media to respond to this “something new,” is
destroying something very old.Rather than understanding the changes the Internet might permit, and rather than taking time to let “common sense” resolve how best to respond, we are allowing those most threatened by the changes to use their power to change the law—and more
importantly, to use their power to change something fundamental about who we have always been" -L.Lessig

wow, what a great quote summing up his own book. I look forward to reading the rest of it...

The Music Industry Is Singing The Blues! 
Most of us wouldn't give 50 cents for all the music's that been published in the last 21 years!
90 percent of all the music being downloaded for free isn't even worth the Internet connection cost to get it, so what's all the fuss about? Why don't you sniffling, whining celebrities get your cut from them, the Internet Service Providers? 
If you're going to start warning people who download music, or even prosecuting them, you'll alienate what little fans you have left! Look at Metallica, the only way anybody wants their music anymore is if they CAN download it for free. You could be next! 
Face it, the days of big record sales are over, there will never be another multibillion dollar superstar like Elvis, just has beens with corpse like faces who'll be serving up slop at the greasy spoon they've invested in! 
You're presently suffering from the psychological ramifications of "Future Shock," brought on by the latest in digital technology. Most of you aren't even intelligent enough to turn a computer on much less use one, or you're leery of them because of your superstitious religious beliefs! 
There's a technological renaissance in progress, and, a digital recording revolution that's liberating the buying public! Relax and go with the flow, join the rest of us, who are just barely making ends meat and who are just one paycheck away from living on the street! After all, if people could afford to pay for your music, don't you think they would? 
It's strange that recording artists can steal melodies, riffs and lyrics from each other but now that the technology is available to allow the so called, common people the ability to be able to download entire tracks for free, they're crying, "Thief!"
And so, to all you musical idols and icons, if you want to sue me, go ahead, the media will turn it into such a public spectacle that I'll end up as famous as you are! Hmmm, that's a hell of a lot better then blowing you're fuckin head off to get famous, now ain't it? 
DJ. Ron Leddie, Sin City Radio.com

Wow. Who would have thought that Steppenwolf's John Kay had such lucid thoughts.

Ha ha ha --get thee back, Satan! You're such a tease.

" It's strange that recording artists can steal melodies, riffs and lyrics from each other but now that the technology is available to allow the so called, common people the ability to be able to download entire tracks for free, they're crying, "Thief!"

Actually, Ron, The ARTISTS don't steal the songs and riffs. Thats the greatest thing about the industry monopoly.
The Artists have rights to nothing.
The labels have a huge pool of resources to pull from. They find pretty faces, give them songs from their "work for hire" servants, usually from 10 yrs or more previous, rework em in a studio, and release as new.
The Label based hip-hop works are built from riffs and tracks from songs owned by the label, they have to pay noone.
Once again they find someone with a "look", and build the "art" from their own pool.
It's an amazing machine.
Whenever one of my kids lets me here the latest "new" song , i make certain to find the original version from years back to play for them, demonstrating that their "star" had very little to do with it.
It's not the artists.
There have been almost no artists for about 20 years. It's mostly the label recycling bins.

hmm, I better clarify that ....
No BIG LABEL artists.

Now the Indies and unsigned, thats a whole 'nuther ball game. Thats where the "art" in "artist" has gone.

"Lawrence Lessig's new (downloadable) book on intellectual property has created a predictable furore. In an angry letter to this paper (24 May) David Munns, vice-chairman of EMI, accuses the Stanford University law professor of condoning theft."

Excuse me? Someone allowing an option and welcoming any potential revenue from those who enjoy the book or enjoy the actual item is condoning theft? I don't think so! You might as well say this about the thousands upon thousands of independent artists that allow all their music to be downloaded for free with the toption of buying if such an item exists. I have not heard a single complaint from any one of them I've spoken to...

In fact, most of the people I know who allow their stuff to be downloaded, uploaded, copied, etc. would jump at the chance to verbally assault whoever said this about them. They'd go public with any and all insults on their personal life or whatever because of a simple yet stupid insult...

"They find pretty faces, give them songs from their "work for hire" servants"

Can you give an example of songs written by "work for hire" servants on major labels in hip hop?

Do you know that a work for hire is not the same thing as transferring ownership in a copyrightable work? I think your rant is based on lots of ignorance.

"The copyright lobby has acquired its power because it has persuaded creative people that it defends their interests"

The 'copyright lobby' as also acquired its power because it has persuaded a lot of congressmen.

Mroop,
can you lick my anus ??

Now that I feel better ...
Start throwing me names of tunes, i'l start throwing you the names of the ORIGINAL songs the tracks were "sampled" from.
I think all of your responses are bought and paid for trolling, created only for the joy of arguing. I think I hear your masters calling you.

Besides, Shithead ..
( as long as your going to START OFF with insults and name calliing ) ....
What the FUCK do you think "Grey Tuesday" was about ???
Oh, yeah, it's just about a bunch of punks who want to steal ...

Actually, since Hip Hop is LARGELY BASED on SAMPLES of other works, the HH community at large was concerned with the suppression of the Grey Album.
Such a clampdown of the use of sampling was seen as a way of crippling independent HH artists, since they could potentially be forced to pay for each individual sample used or risk being sued.
But, you forgot all about that, you asshole.
No, actually, you just believe that everyone else is stupid enough to have forgotten that.
Why don't you find something useful to do instead of pissing people off just to get a rise out of them you festering ass-pimple.

Apologies to Comp for my tone.
When my kids don't sleep, neither do I, and it shows ....

When I look at the sea

Its dark tales frighten me

A deadly trap, cleverly hidden

For, how many lives did it ruin?

Remember, Steppenwolf was named for a Herman Hesse book....not exactly comic book reading... not the same John Kay...this cat doesn't wear shades,...

mroops "briefs" are too tight ..

"smirk"

*sigh*
your right, of course.

You'd think I'd know by know not to even bother responding to his blather by now, but somehow, I still do.
He is even less popular on other boards such as whatsthedownload.com, several others. It's not that his point of view is different, it's the deliberately combative, "I am soooo much smarter than all of you morons" attitude he works so hard to project, that makes him such a favorite. I am pretty convinced that Mroop was in fact Downloading Hurts Artists ( DHA ) at the John Kerry forum as well. Attitude and language "style" waaaay to similar for ordinary coincidence.
Reason for doing what he does ??
Well,
On the kerry forum his antics managed to get several of our threads closed. Gothic_angel got them opened again, so the message could continue.
His personal attacks caused some to feel humiliated and drop out of the debate, one less fighter for us.
This convinces me that he is a paid shill, whose goal is to get threads closed or drive people away from "critical" sites.
I, however, am the wrong target.
First,
I already know that I am not the brightest tool in the shed, so calling me stupid won't make me go away.
I already am aware that I don't have all of the information ( thats why I come here, I can count on others here to fill in my blanks ) so calling me ignorant won't make me go away.
Going gutter on me with name calling won't make me go away. I have no problem rolling in the mud.
Mroops prize is his anonimity. behind it he can cause mayhem for whatever reason, and ( I suspect ) get paid for it.
Trouble is, anonymity on the internet IS fleeting.

WE ARE WATCHING YOU AT ALL TIMES!!!
BIG BROTHER LOVES ONE AND ALL FAIRLY AND EQUALLY!
GIVE IN TO BIG BROTHER!
O_O

"Such a clampdown of the use of sampling was seen as a way of crippling independent HH artists, since they could potentially be forced to pay for each individual sample used or risk being sued. But, you forgot all about that, you asshole."

Ha! So much ignorance, so little time. Independent HH artists ALREADY pay for each individual sample or risk getting sued! Sheesh. This was settled in court cases about 20 years ago. So your take on Grey Tuesday is 100% wrong.

In addition, using samples has nothing to do with "work for hire". It seems you don't even know what work for hire means. Why don't you look it up before you start using the term incorrectly?

"His personal attacks caused some to feel humiliated and drop out of the debate, one less fighter for us."

Rather than feel humiliated, why don't you post when you know what you are talking about instead of posting ignorant blather? At this point, you should feel humiliated. You post about work for hire and everything you said was wrong. You post about Grey Tuesday and everything you say is wrong. Now go sit in the corner and put on your dunce cap.

"I am pretty convinced that Mroop was in fact Downloading Hurts Artists ( DHA ) at the John Kerry forum"

Oh yeah, I've never been to the John Kerry forum, but please continue your baseless claims. I have no problem with any criticisms if people know what they are talking about. Unfortunately, you just make up bullshit. So I'll try asking you again:

Can you give an example of songs written by "work for hire" servants on major labels in hip hop?

No, you can't. Because most hip hop artists write their own songs, even if they use samples in those songs. Dumbass.

"I already know that I am not the brightest tool in the shed, so calling me stupid won't make me go away."

And I never called you "stupid". I called you "ignorant" because your entire post was ignorant and bashed hip hop artists using false information.

????????

The only food fit for a troll

????????

oh, and .. quack

I don't feel humiliated.

When I look at the sea

Its dark tales frighten me

A deadly trap, cleverly hidden

For, how many lives did it ruin?

Now,
would some non-troll correct me if my assessment of the situation is incorrect ?

Mroop is in full "complete fuckface" mode and thus will simply continue to troll regardless of anything presented by me.
I welcome opinions by anyone but Mr, Roop, the infected 'roid.

Glad to oblige. : )

Here is some info on work for hire:

http://www.music-law.com/workforhire.html

Here is some info on sampling and the Biz Markie case, which set the precedent in 1991.:

http://www.illegal-art.org/audio/historic.html

http://www.robertchristgau.com/xg/rock/bizmark-92.php

Your asesssment is incorrect because the labels don't give hip hop artists "Songs from their "work for hire" servants". This is insulting and demeaning to hip hop artists.

Your statement that "The Label based hip-hop works are built from riffs and tracks from songs owned by the label, they have to pay noone." is also incorrect. The artists or producers choose the source of the sample - not the label.

Your analysis of the Grey Album is also way off base. First, Hip Hop is not "LARGELY BASED on SAMPLES of other works." The artists want to keep as much money for themselves as possible, so sampling is a lot less prevalent then it was in 1991.

Second, your statement that "Such a clampdown of the use of sampling was seen as a way of crippling independent HH artists, since they could potentially be forced to pay for each individual sample used or risk being sued." is incorrect because independent Hip Hop artists have had this situation since the Biz Markie case.

Basically, everything you said was incorrect. Your welcome.

?????????