A Musician's Take on File Sharing, DRM, and Copyleft Licensing
by Miriam Rainsford 06/10/2003 from http://www.openp2p.com/pub/a/p2p/2003/06/10/musician_pov.html


In a recent weblog, Derrick Story wrote "I'm tired of listening to the RIAA. I want to hear from the musicians."

We hear so much in the press about the RIAA's stance against "music piracy" and the attempts of major labels to provide legitimate music download services, while making a determined effort to deter those who wish to share music on peer-to-peer networks. Story is all too familiar with the current stalemate between consumers and the RIAA, but raises the point that "I don't know what the actual artists are thinking. They are the ones who create the content that everyone else is arguing about."

Musicians are often unwilling to speak out against the tight constraints of their record labels, afraid of biting the hand that feeds. But an increasing number of artists are embracing the changes in digital technology as a potential revolution which may free them from the shackles of the commercial record industry. As an independent, computer-based composer whose work deals directly with fair use rights in an interactive world, I will dare to venture an answer.

Yes, we have indeed heard enough from the RIAA, a conglomerate of the five major record labels which claim to speak on behalf of their artists, yet are out of touch with musicians' need and interests. I would suggest that instead, financial interests and a fear of adapting to changes in technology are the primary motivation behind their impassioned speeches against "piracy" and their pursuit of multi-million dollar lawsuits against students running private, non-profit file sharing networks.

Differing Opinions About Music Sharing and Sales
The issue of peer-to-peer (P2P) file sharing and music downloads gives rise to strong and differing opinions from record company executives, musicians, and the listening public. A conclusive study of the impact of P2P on the record industry proves difficult to obtain, and each side has manipulated sales figures to their advantage: while the RIAA present a worst-case scenario, others demonstrate that P2P does in fact encourage sales by introducing listeners to new material which is then purchased in CD format.

The economist Stan Liebowitz, hitherto supportive of the notion that P2P has no impact on the record industry, released a controversial paper (.pdf download) last week demonstrating that there is some negative effect, although difficult to establish due to the multitude of other factors.

These include changes in musical taste, the death of the CD single, the introduction of new formats (including authorised MP3 sales), and lower numbers of CD releases due to the current economic recession. Liebowitz's study should also be viewed as somewhat inconclusive as it relies purely on sales figures. It is noteworthy that he has neglected to survey actual public opinion as to why their purchasing habits may have changed.

However, regardless of one's position either for or against P2P, it's clear that file sharing has indeed proved a direct threat to the establishment, as it decentralizes control. Peter Drahos, in his book Information Feudalism supports these assertions: "the threat was not so much to entire industries as to individual players who did not want to lose their position of dominance. These players turned to copyright law in the hope of finding immunity from competition and the uncertainties of technological change."

Digital Rights Management: Overkill for Users
And if the major players get their way, their reassertion of control would take the form of Digital Rights Management (DRM) technology embedded in every computer, CD or DVD player, car radio or mobile device, providing an extreme means of control over any attempt to share music. DRM, whether in software or hardware form, is impossible to employ without some level of infringement of the user's civil liberties. Whether this is simply a matter of denying fair use rights, or delving deeper into setups such as TCPA/Palladium which entertain the possibility of remote data-mining, the risks to privacy are very real. When combined with anti-circumvention legislation, this results in a situation where the terms of copyright law are no longer defined by the government but by the publisher.

As a musician I find the notion of using DRM technology abhorrent--not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.

But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment, and it is very difficult to create music without an atmosphere of freedom. Musicians just want to be free to create, without being concerned over having their music--or the tools they use to make music--tied down or controlled by devices which may well have detrimental effects on audio quality. Perhaps the reason Apple has been so notoriously silent on the topic of DRM is that the Mac OS dominates the creative market. To implement DRM on a Mac platform would risk alienating their primary customers in the pro audio sector.

I believe there exists a better alternative to DRM and technological methods of control, in the form of copyleft licensing. Copyleft is the permission to redistribute which forms the essence of the Free Software and Open Source movements. By adapting this principle to suit creative works, musicians have a means to license the sharing of their works without unnecessary technical constraint. The EFF's Open Audio License and Larry Lessig's Creative Commons project are examples of the practical application of copyleft principles in the arts, which musicians may easily utilise without the need for specialist legal knowledge.

File Sharing and Copyleft Licensing
As a struggling composer myself, I think that file sharing promotes, rather than takes value from my music. If I permit my audience to copy my works--which, let's face it, they are going to do anyway, whether I like it or not--then DRM technology becomes unnecessary. Copyleft licensing decriminalizes sharing, whereas DRM makes criminals out of our audience; indeed, out of us as the musicians. It would be impossible for me to compose my heavily sample-based work without access to file-sharing networks. The job would be tedious and time-consuming, and indeed sometimes nigh on impossible, as many of the samples that I collect are from rare MP3 files.

There is no criminal activity involved in taking samples for the purpose of parody or artistic criticism, as this qualifies as fair dealing under UK law. Under copyleft licensing, there would be no need for me worry about the methods I use to collect my samples from the Internet, as redistribution is permitted. One could even form a repository of copylefted works, which could be employed by musicians working with samples, web designers seeking sound effects and perhaps even teachers who might wish to use a piece in a drama class. Darren Landrum has begun work towards an Open Music Resource Library which would offer such services.

Kris "Thrash" Weston, formerly of The Orb, has turned to using copyleft licensing in his new venture, bLiP Records, where he distributes his releases online via his site. Weston also operates servers on all the major P2P networks, releasing the entire contents of bLiP's premiere album, "WTF? - The Madonna Remix Project," in MP3 format under an open audio license. This may seem a risky move for a new business, but Weston believes in the power of file sharing as viral communication, promoting his new recordings and providing a form of free advertising--very welcome to a new company with little money to spare.

Weston terms copyleft "a karmic tax", as it establishes a level playing field; those who feel they will lose out through permitting reproduction are the ones at the top of the tree: "it only affects the people making too much in the first place". Having seen the ugliness of the music business from the inside during his days with The Orb, he has chosen copyleft as a means of fighting back against the institutionalisation of music: "... if only purely to stop the onset of the DMCA and the pointless bodies that do little for the struggling artist and much for the old boy's club".

One difficulty which bLiP records encountered in releasing the Madonna Remix Project album was that MCPS (UK Mechanical Copyright Protection Society) licensing is at present incompatible with copyleft licensing. Weston wished to draft his own license which would permit his customers to enjoy sharing MP3s of the album. When he approached the MCPS, their response was that a copyleft license would be "inappropriate."

On further inquiry it seems that, as an artist signs an exclusive license to the MCPS for royalty collection, the MCPS are then unwilling to extend this license to include file sharing. This is somewhat understandable when one considers that the MCPS takes an 8.5% cut from every album or digital distribution in the United Kingdom. The MCPS are willing for their members to use copyleft licensing as long as they sign a waiver for royalty collection. But what made Weston's job difficult is that, under UK law, it is illegal to press an album without an MCPS license. And an album license will not be granted by the MCPS if the album uses copyleft material.

So, yet again, we find that musicians who wish to work independently of the system are being locked out by a monopoly operated by the MCPS, who receive the major part of their commission through royalty collection for the Big Five record labels. This makes it hard to believe that the MCPS would be unbiased in their service toward musicians, even though it would take little effort for the MCPS to implement alternative forms of licensing. Julian Midgely, Chairman of the UK Campaign for Digital Rights, commented on the situation: "From the experience of bLiP Records, it appears that the British system for music publishing is heavily geared toward dissuading musicians from releasing their music under open licenses. We can see no adequate justification for this, and will be investigating further."

Kevin Marks' mediAgora presents a potential solution to this problem. mediAgora is a business model for internet-based distribution, designed to work within a P2P framework. mediAgora supports Creative Commons and other copyleft licenses, and permits and actively encourages redistribution by rewarding those who share files as virtual "promoters." Those who share files on their P2P systems are required to pay a fee to purchase the files, but are then rewarded when another listener buys and shares the music from their server.

A predetermined percentage from all these fees is returned to the artist, who takes the place of the record company middleman and receives around 70% of royalties. Although it may seem a complex system, it is designed to fit easily into present file sharing networks. Marks is convinced that DRM is unnecessary, and destroys the value of the work. He believes that the best way to encourage fair payment for an artist is to make legitimate systems easier to use than the unauthorized networks: "If you lock up your work with some scheme that requires a password to be entered and a network connection to authorize, or one that sets a time limit after which it will destroy itself, or even just one that prevents editing and copying, your customers will value it less, and be less likely to pay for it."

The success of Apple's recent venture with EMI indeed demonstrates the willingness of customers to purchase downloadable files when the system is easy to use and integrates neatly into their existing software to provide a high quality service that can also be shared across a network. While still hampered by some DRM constraints, the openness of EMI in permitting a certain level of copying and streaming is noteworthy in demonstrating a more creative outlook.

Final Thoughts
As musicians, we have a natural tendency to turn any situation to creative advantage, but our attempts are being frustrated by those at the top, who don't wish to lose their increasingly unstable monopoly over the production of music. William Gibson, in a speech at the Director's Guild to America, compared the evolving situation in digital distribution to the medieval feudal system, with the record companies as our patrons, feeding off our hard labor. We as musicians are tired of being subject to the whims of middlemen, who take a greater cut from our earnings than is reasonable. Like the medieval peasants, we are seeking change and revolution; but when musicians revolt, they do so with creative flair. We are exploring solutions such as mediAgora and copyleft licensing as a means by which we can return the balance of power to where it rightly belongs, with those who create the music.

Miriam Rainsford is a composer, singer and songwriter in classical, electroacoustic and underground dance music.

Miriam is always great.

"...what made Weston's job difficult is that, under UK law, it is illegal to press an album without an MCPS license. And an album license will not be granted by the MCPS if the album uses copyleft material."

So far, the US does not have this restriction. We can still press or burn our own CDs. At least so far...

I am so sick of the RIAA speaking for the artists and not letting the them talk for themselves. The artists also have something to say about this whole issue.

Great article by Miriam.
Too many points to comment on right now except to make one observation.

This notion about musicians being afraid the "hand that feeds" them, may be exactly how they look at it with regard to the RIAA, but what they have to understand is that they are fed scraps off the big labels' table. If there is any hand that feeds them, it is the public who ultimately go to concerts and buys the music. Those are the people they should worry about angering!

I am getting sick of them and their blanklet statement, "File sharing is illegal."

Listen up...file sharing is not illegal! It is not illegal in the US..it is not illegal in Canada..and nowhere else eitherl. Now when it comes to passing around music produced by clients of the RIAA that still may be in the shady area...but passing files around..(I'm talking authorized and uncopyrighted files) is not. This is something that has to be urgently addressed. People are getting the idea that simply using p2p for any reason is illegal.

I cannot wait to relaese my cd. By god it will be up my website...mp3'd in all its glory for free download with a paypal account. If peopole wanna listen to my stuff..then they can...if they like it that much then they can support me so I can make more music (I will make it regardless..just easier to make it when you don't have to work 9-5 to pay the blls..heh)

I so much want to be a part of this revolution..I am angry as I can get at the RIAA...and gettiung angrier too. I am sick of the fuckin suits and ties who trying to strip me and everyone else of our freedoms while they live in mansions and drive nice cars.

Everyday I get on the net and I go to the various anti-RIAA sites and it just seems like they are winning. People getting sued...and people still supporting them by buying their shit. My young daughter wants the new Britney Spears CD when it comes out. I am sorry but I will not be purchasing that crap.

The public has gotta stop supporting these companies or they will have nobody to blames but themselves when all their rights have been stripped.
All I can say people..is fight harder!!!...Get more aggressive about this. I have already told my kids to tell me if they start preaching this copyright crap to them in the classroom. I have also made them aware of who the real crooks are in this fight.

All I can think of is this statement (I've changed it a bit)
"Choose this day who's side you are on..but as for me and my house..we will stand and fight!"

one ? where can I find her music.
this was a very educational article a little something about the UK I didn't know and a great article altogether.

zxilton :
really like the final quote...comes from a very good original source

Hey all ya kids out there:

If some guy comes in your classroom, the RIAA guy preaching copyright *explicative deleted* to you, here's what to do, in order of immediacy/easiness

1. Question them. It's not that hard. The guy being hired by the RIAA and forced into your classroom is nothing more than a spineless goon who isnt a copyright lawyer, much less knows why it was implemented. A couple questions will get him thinking.

2. Talk to your teacher. My 7th grade teachers all know P2P, one needed help unlocking his Office XP iso he got off the internet (needed an activation key), and likely most of your teachers have used P2Ps for getting music, but stopped due to the recent RIAA scare tactics (which scared my mother and me so I dont P2P anymore).

3. Talk to your principal. I have good connections with staff and administration, you may not - experience may vary. If you cant (reach him, get through to him) or have a bad (rap, record) try (petitioning your student council, protesting with your peers, etc.)

You can't even press your own albums in the UK without permission ???!!!
What kind of garbage is that ???!!!
They'd better not try that stuff here. This is not communist China. We have freedom of expression. We also have the second amendment, to defend the rest of the Bill of Rights.
Prohibition of alcohol did not work, and neither will prohibition of P2P.
This stuff is really getting silly, not to mention dangerous to our freedoms.

The Kid

iH8RIAA: Your exactly right, resist their bull cr@p.
Lastyear some of my teachers where getting PhotoShop 7 when using p2p.

In 7th grade my tech teacher and phyed teacher where bothe downloading songs off the internet using Napster for Mac (Yuch I hated that school) and playing them during class, then in 8th grade I caught the tech teacher using LimeWire to download songs (he didn't knwo exactly what he was doing/ how limewire worked)

Everyone uses p2p or has used it at one point in time or another. I share over 26GB of music, video, and other 'rare' files, my drive is actually going bad and I'm getting it replased under warrenty this week so I will have som downtime, but no bit'h scare tactic is ever going to scare me.

This is more like "A Struggling Musicians Take...". It really is no big thing because those not making all that much from music benefit from P2P. I'm more interested in what the big, influencial artists have to say, and so far I get the impression that they are 100% AGAINST P2P.

Look at the the Recording Artists Coalition site and you'll get a clearer picture of how artists (Pearl Jam, Beck, Sheryl Crow, Elton John etc.) view file-sharing. Here's a quote:

" The artists need the record companies to invest in and market their music. The fantasy of a direct relationship with the fan/consumer using technology and the Internet is just that, a fantasy. Record companies obviously need the artists to make music, but also to be their allies in fighting piracy and the various battles with the high tech industry as evidence by the fight over royalties for streaming music over the Internet."

In other words, they need to sought out their differences pertaining to unfair contracts etc, and then join hands and fight "piracy".

I don't see much innovative open minded thinking here.

Another artists I know for sure is against P2P is Armin Van Buuren, No. 3 DJ in the world as listed in DJ Mag not 3 days ago. I know because I asked him directly in an online chat. His answer was "its illegal! we have to face the future and find a solution fast for downloading." (He's a law graduate ; he also owns his own label and is not affiliated with the big five - although he has sold some of his music to them. I guess you could call him an impure Indie). He thinks it's not beneficial.

Then there was that coalition of Country singers having that rally AGAINST P2P in Texas somewhere a few months ago where a P2P advocate got up to speak and was booed off the stage.

If the artists aren't talking it's a good bet they are against P2P. If they were for it they'd say something because they know their fans would approve. Just following logic you have to assume that if they're silent they are against it. Either that or they just just don't want to get involved in this complicated issue. But, c'mon, it's the No. 1 issue in music today; I find it hard to believe they don't have a strong opinion.

All the evidence points to the artists who make a good living from music, the influencial ones, are against P2P.

...There are a few courageous free thinking exceptions (Chuck D, Travis), but the majority are fully apposed to P2P.

b1, could you tell me who said the quote you used?
"" The artists need the record companies to invest in and market their music. The fantasy of a direct relationship with the fan/consumer using technology and the Internet is just that, a fantasy. Record companies obviously need the artists to make music, but also to be their allies in fighting piracy and the various battles with the high tech industry as evidence by the fight over royalties for streaming music over the Internet."

I'm interested in who said that.

I think it's interesting, because apparently, the RIAA or the big labels or someone, is trying to foist the notion that you can attack a "p2per" and not attack a fan, or not attach a consumer.

Obviously, the people who are downloading songs are fans of the song/and or the artist performing it, and probably, of the songwriter. People generally don't spend hard drive space on songs they hate. So, to attack a P2Per is to attack a fan.

The RIAA, in its own suspect statistics, allege that 48% of the "HEAVIEST downloaders" (their term)no longer buy CDs (from RIAA related labels). The converse would be that the majority (52%) of the "HEAVIEST downloaders" still buy the music CDs.

Thus, they are also attacking customers.

So, this notion that P2P downloaders/uploaders of copyrighted song files from RIAA lables are somehow different from fans and customers is ludicrous.

This notion of a country music coalition rally against P2P shows just how STUPID the participants of such an event are.

If artists feel they can attack fans and customers, and continue to be appreciated and loved, they are in desparate need of chemical dependency testing, and perhaps rehab.

"But what made Weston's job difficult is that, under UK law, it is illegal to press an album without an MCPS license. And an album license will not be granted by the MCPS if the album uses copyleft material.

So, yet again, we find that musicians who wish to work independently of the system are being locked out by a monopoly operated by the MCPS"

Good lord, is it really that bad over their already? I know that this is virtually what Soundscan wants (and nearly has for all practical purposes.) It is still legal to release an album here in the USA, (albeit virtually impossible to promote via tradition methods) without the major label taint of approval.

"I am getting sick of them and their blanklet statement, "File sharing is illegal."

Zxilton, you are correct. File Sharing is not illegal ...yet.

The danger is that it could become illegal easily and the RIAA and other concerns want to make it so. The monopolists would love nothing better than to turn the internet into a passive media which they control with the same iron fist that holds tv, radio, and other media which are supposed to be public utilities.

zxilton, your daughter wants the B. Spears album, you won't get it for her.
It sorta saddens me that she can't have it even though it is garbage. Kids should be encouraged and allowed access to music. See if you can find an independent artist's CD you can get her in place of that dreaded RIAA album.
She will probably thank you for it later.

b1, you are right that the "famous" artists should be speaking their minds about p2p issues. Relatively few have done so considering how big the issue is. Most that have spoken out have done so in a pro RIAA manor. I suspect that many others want to take the RIAA stance as well, but fear a backlash from the fans (rightfully so!) and just let the RIAA take all the heat. I wish we could come up with a way to "conjole" more of these so called "legitimate" artists to speak their minds. I think most are pro RIAA because they are greedy and depend on the system as is, and are in full knowledge/belief (wrongfully, cause it really ain't so) that what little gravy train they currently enjoy would be near impossible for them to attain without the system as is. Any "famous" already artist would benefit greatly if they released music independently and allowed for fair use filesharing.

Shmoo, of Electric Gypsy
Support Local and Independent Music!

hi everyone!

well firstly i'd just like to say a huge thank you for all your support. your words are so thought provoking and motivating, i am glad to see that we still have a healthy Resistance out there despite that RIAA's bully-boy scare tactics.

here in the UK, we are now faced with the shock of 'making available' being made a criminal - not a civil - offense. this is apparently a requirement of the EUCD, yet Germany and France managed to preserve a modicum of fair use rights. the UK did not in face have to alter any of its existing legislation to comply with the European Union Copyright Directive, but chose to implement an oppressive regime potentially far worse than America has seen under the DMCA. our efforts in lobbying were moderately successful though, and have succeeded in us retaining some rights to reverse engineer for the purposes of research and/or interoperability, albeit only for non-commercial purposes. this directly threatens the world of GNU/Linux, which is a commercial application dependent on reverse engineering research to produce some of its drivers.

with regard to the 'making available' situation - as i also heartily believe that p2p itself is not illegal and is in fact a very valuable new form of communication that may well be indicative of greater change in sociological systems (see http://www.opendemocracy.net/debates/debate.jsp?debateId=101&id= src="http://images.dmusic.com/v7/emoticons/cool.gif" align="middle" alt="8) (Cool)" title="8) (Cool)" />.
i will shortly be organising a publicity stunt whereby i will make available my entire catalogue of my own works including the Madonna Remix Project CD.
this disc, and all my other works, are either Creative Commons or Open Audio licensed. and 'heavy users' at least of Kazaa are actually not real - i run KL Cheater so that i can obtain 'Guru' or 'Deity' status without actually sharing any files at all - its a trick to improve download speed. these tactics and the name Madonna will almost certainly be guaranteed to catch the attention of the British Musik Kops and i will blog the results. it would be quite interesting if a lawsuit for wrongful arrest / seizure of equipment would be brought, to prove that P2P is not illegal per se, and is a valuable means of promotion and communication.

i am also working with Glenn Otis Brown of Creative Commons / EFF on the MCPS situation. i have done some research and found that there are no statutes in UK copyright law enforcing the use of a license to press CDs, which suggests that somewhere along the line the MCPS may well have applied additional pressure. further research is required though and we will take action shortly to persuade the MCPS to be more inclusive in its support of alternative licenses.

in the meantime, thank you all once again for your support, it is heartening to hear your strong views on P2P and the bullying of the RIAA. you may be interested in signing our petition below, which has been supported by Negativland and Janis Ian among others.

and if you're curious about my own music:
http://www.madgelloland.org/irixx/ plus the two links in my sig.

all the best!

miriam rainsford aka iriXx

--
Musicians say No to RIAA Persecution and Prosecution of Music Lovers!

Sign the petition at http://www.copyleftmedia.org.uk/justsayno/

.::. www.iriXx.org .::. www.copyleftmedia.org.uk .::.

CodeWarrior, that quote comes from the section on Recording Industry Practices, paragraph 9, on the Recording Artists Coalition site. It is a quote by Senator Kevin Murray's investigation into the recording companies. http://www.recordingartistscoalition.com/rip.html
It is not a direct quote from the artists but they have it on their site, so I assume they agree with everything he said.

And also CodeWarrior, I agree absolutely with everything you're saying in your second post there -

"If artists feel they can attack fans and customers, and continue to be appreciated and loved, they are in desparate need of chemical dependency testing, and perhaps rehab."

- and this is the crux of the whole situation. The fact is that if you believe that the majority of the artists are behind the RIAA in exterminating P2P (what I believe), and you know that the RIAA is in the process of doing just that, then you have the situation where the music fans/public/consumers are on one side of a war, and the artists and record companies are on the other. There seems to be no willingness of either side to give an inch. Both sides are out for blood. And yet these two sides want and need each other to survive at the same time. The consumer wants the music; the artists want the fans to love them; the record companies want the fans to buy the music. I mean, what would happen if you went to an artists live show - one against P2P, like Metallica - and they asked the audience how many use P2P, and the audience answered we all do? Would they walk out, throw a tantrum, say don't do it to 10,000 people. The RIAA and artists are deluding themselves if they think that the file-sharers are a seperate criminal group from their true and virtuous fans.

Miriam, it sounds like you're doing a lot more than most. I'm sure everyone here supports your actions. Keep it up.

...and Miriam, I would like to thank you for bringing to my attention that openDemocracy site. I have been looking for some thorough intelligent debating on the issue of file-sharing and copyright (not that Boycott-RIAA is not thorough or intelligent) and openDemocracy has some nice discussions going. I love the internet.