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Let's be fair to the moron defense for a moment. Let's look at what MusicUnited is saying.
"More than 2.6 billion files are illegally downloaded per month.
The explosion in illegal copying is affecting the entire music community. And contrary to what some people would tell you, it's having a very real and harmful impact on countless musicians, songwriters, and performers-virtually everyone, from recording engineers to record-store clerks, who dreams about making a living providing music to the public.
"It's illegal!
"The unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD. Burning CD's from peer-to-peer networks like KaZaA, Morpheus or Gnutella is against the law. The rules are very simple. Unless you own the copyright, it's not yours to distribute."
Downloading is NOT NECESSARILY a Crime
More than 2.6 billion files may be downloaded every day, but who decided this was illegal?
Record contracts, as evidenced by every example we have found to date, seems to be having more of a "real and harmful" impact on anyone (except the five major labels) trying to make a living from the music business than downloading. I particularly liked BMG's observation in their most recent annual report that suggests "structural weaknesses long obscured by market successes" could possibly be the problem.
It's the third paragraph of the MusicUnited spiel that bothers me most. This is almost the truth, but not quite, which is what I find insidious about it. In fact, the entire front page is based on a major misrepresentation.
Downloading is NOT a crime if it is authorized by the copyright owner.
For every name on the MusicUnited.org website, I can come up with an artist who has expressed their opinion that downloading is just fine with them. It's free promotion to them. Janis Ian, Courtney Love, Tom Petty, Blues Traveler, Bernie Torme, Alannis Morissette and Natalie Merchant are at the top of that list.
Even under the DMCA, it is necessary for the publisher of a copyrighted work to file a complaint in order to institute any legal action against a consumer for distributing a digital copy. In the eyes of the law, the publisher is owner of the performance recorded on Tom Petty's latest CD, not Tom. Tom may own the copyright for the words and music that he wrote, but his publisher owns the rights to his performance - the sound recording.
No matter what Tom Petty thinks, Warner Music Group can still prosecute his fans for downloading "The Last DJ" if they can prove it was an unauthorized distribution. Janis Ian (and now Jewel) is annoyed because they WON'T allow her songs to be distributed freely.
A Matter of Choice
The problem is that, in our above example, Tom can tell us how he feels about downloading, but if Warner Music Group or the RIAA, as a representative of the publisher, finds a copy of one of his tunes on your hard drive, you have still committed a crime in the eyes of the law. Maybe. You might actually get away with having "The Last DJ" because Tom had it posted on his site for download.
This point of view applies to a pretty broad swath of the DMCA because it applies to software, as well. AOL will probably send you another CD in a week or two with its software on it. I can download Netscape for free, too. I can freely give away copies of either. It's authorized by the copyright owner, which is the same company that owns "The Last DJ" sound recording rights.
Downloading and distribution of digital copies is not necessarily illegal. Only if it's unauthorized.
So Joe Consumer logs on to Kazaa or Gnutella and finds "The Last DJ." The radio stations stopped playing it almost immediately after it was released. Joe would like to hear it again. Joe used to download songs from mp3.com and he remembers Tom Petty saying that Tom is more worried about counterfeit t-shirts instead of counterfeit CDs and mp3s because he doesn't make any money from the CDs anyway.
If Joe Consumer finds Tom's song and downloads it, even based on Tom's public opinion that it's not hurting his rock-star lifestyle, the RIAA can still use Tom's songs as evidence against Joe, provided they can force Verizon to cough up Joe's name. The RIAA doesn't speak for Tom; they speak for Warner Music Group.
Business Matters
A perfect example of this dichotomy is mp3.com. Before Vivendi/Universal took over, independent artists could post as many ot their own songs as they liked for free download. Now, artists must pay to allow more than one of their songs to be available for downloading.
So Vivendi is certainly viewing mp3s as a promotional tool, so much so that they are now charging the artists to deliver their material to the public. The next step (just you watch) will be to make the consumers pay a per-song download fee. Vivendi will make money on both ends, profiting from the mp3s we wanted to give away free in the first place.
Forget Tom Petty now. He signed his songs over to his record label.
I haven't signed mine over to a label (other than my own). I own my songs completely. Someone is still trying to use them to prosecute consumers -- ASCAP.
I joined ASCAP to enable them to collect royalties owed to me under the law. If I put one of my songs on the Internet in mp3 form, I fully expect it to be redistributed. In fact, I'm hoping that's exactly what happens. I am authorizing that use by being the primary distributor.
But ASCAP is now going to go to Washington D.C. and lobby, on my behalf, that downloading mp3s is theft. In turn, and providing they are successful in this effort, this is going to authorize the RIAA to use my music as evidence against a potential fan. They will be acting on behalf of ASCAP, who will be acting on my behalf, even if it is exactly what I do NOT want to happen.
I thought the reason that I registered my songs with the U.S. Copyright Office and ASCAP was to prevent the unauthorized use of my works. Funny, I don't recall authorizing the persecution of consumers in my name. The people I was really trying to protect myself from (EMI, BMG, Warner Music, Sony and Vivendi/Universal) are apparently going to be allowed and empowered to use my music in an unauthorized manner despite my constitutional protection.
My music is still being stolen from me and used for the profit of others. Ironically, the thieves are the very people I was trying to protect my works from in the first place.
How the hell did this happen and what can I do about it? Even on the most self-centered level? Let's say I don't give a rat's ass what happens to Tom Petty, Janis Ian or anyone else. Pure selfish greed. How do I get my own songs back? I didn't sell them to anyone or authorize anyone to do anything besides listen to and copy my mp3s, but now they're going to be used to criminalize my marketing plan, not to mention the unfortunate fan.
They didn't even let me in the club and they stole my stuff anyway. They're taking control of my music to prevent me from competing with them by telling Congress that they speak on my behalf.
Since I'm the one uploading, if the phrase "downloading is a crime" is true, then distributing is even worse. This means I am the most likely person to be charged with copyright infringement -- of my own songs.
If they can use my songs this way, that means that they are capable of exerting control on 100% of the market for recorded music, because I've been trying my best to keep as far away from the greedy bastards as possible.
George Ziemann
musicwantsto...
mtbatol
psyyoung
