[IP] File-sharing: A well-argued, contrarian view
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 06 Oct 2003 10:00:53 -0700
From: Martha Baer <m.baer@xxxxxxxxxxx>
if you think others would be interested:
http://www.washingtonpost.com/wp-dyn/articles/A42279-2003Oct3.html
--
PLEASE NOTE: My email address has changed; it is now m.baer@xxxxxxxxxxxx
Thanks.
............................................
Martha Baer
m.baer@xxxxxxxxxxx
martha@xxxxxxxxxxxx
(415) 642 7504
..............................................
Listen, It Isn't the Labels. It's the Law
By Jeff Howe
Sunday, October 5, 2003; Page B01
First things first: I'm an unlikely recruit to go to bat for the major
music labels, which is precisely what I'm about to do.
I started covering the recording industry in the late '90s, just as Napster
was gaining steam. Since then, I've written about the labels' seemingly
irreversible decline. For years the record biz has been its own worst
enemy, resisting obvious technological improvements and blithely promoting
the most awful, prefabricated, market-tested musicians while conspiring to
keep CD prices artificially high.
So it was hard, at first, not to react with infectious glee when an
arrogant, antiquated industry started getting its due. Napster, the
original file-sharing software, was going to be the shot heard round the
world, we tech journalists decided. Then Napster was declared illegal, but
we were sure the next generation of peer-to-peer services would save the
day. They allow computer users to access files -- including copyrighted
materials -- from each other's hard drives. They would give musicians
direct access to their fans, we thought, cutting out the "greedy middlemen"
who make millions off the backs of struggling musicians engaged in honest,
creative labor. The labels -- along with formal business attire and
mandatory office hours -- had to go.
But now, just as that revolutionary fervor has spread to the public at
large, which seems to view file sharing as an inalienable right, I've lost
the faith.
Last month the Recording Industry Association of America (RIAA), a trade
group representing the five major labels, filed 261 lawsuits against people
who were using peer-to-peer services such as Kazaa and Grokster to share
copyrighted material. The defendants included a 12-year-old honors student
and a 71-year-old grandfather. The public backlash was swift and
predictable. "We listeners need to start insisting music be about music,
not about propagating the status quo and letting the fat cats eat caviar
and smoke cigars," wrote a University of South Carolina student in an
editorial that sounded like much of the file-sharing crowd. And in a
comment to this newspaper later picked up by UPI, Wayne Rosso, the
president of Grokster, said, "They [the RIAA] give Joe Stalin a good name."
The rhetoric surrounding file sharing has become so overheated that we've
lost any sense of reason. To hear the current uproar, you'd think the
labels were threatening to throw children's choirs into prison for
performing Irving Berlin's "White Christmas." (In fact, the RIAA has been
settling with defendants for a fraction of the amount it is legally
entitled to demand: $150,000 per violation.) Lest we forget, distributing
copyrighted material online is illegal. I see nothing wrong with an
industry fighting for its survival in a manner that's morally and legally
justified. Besides, we don't become indignant when pre-teens are prosecuted
for stealing cars, so why now?
Of course, if the file-sharing debate has gone off the rails, the RIAA is
partly to blame. The public, in my anecdotal experience, loves to hate "the
labels." But the labels, as a single evil monolith, don't exist. There are
five major labels -- Warner Music Group, Universal Music Group, EMI Group,
Sony Music Entertainment and BMG.
All but EMI are in turn owned by media leviathans such as AOL-Time Warner.
The major labels own scores of smaller ones, such as Elektra, Epic and
Interscope, where much of the music is made, marketed and distributed. The
people who work at the smaller labels, people I got to know while covering
the music industry, are the ones now losing their jobs in droves, at least
in part because of file sharing. They are not fat cats. They don't chomp
cigars and relish caviar. They have much more in common with obsessed file
sharers and the music lovers than they do with the lawyers and CEOs of the
conglomerates they work for.
Listeners who have come to hate the labels believe their favorite artists
no longer need the labels. If only that were true. Maybe Prince can afford
to cast his label aside and go directly to the fans. But he did so only
after becoming a household name. The vast majority of musicians will never
find an audience large enough to let them quit their day jobs without a
staff of marketing and promotions people who know how to book a tour, make
a video and get their CDs into stores (or get their music prominently
displayed on a licensed download service such as Apple Computer's iTunes
Music Store). Talented, emerging artists need the labels, and because they
do, so do we as listeners.
All this isn't to say that the public shouldn't be outraged by some aspects
of the lawsuits. But so far, music lovers have missed the point. The real
disgrace is that the RIAA was able to identify the Internet users it is now
suing. To understand how, take a look at a terribly flawed law, the Digital
Millennium Copyright Act (DMCA), passed in 1998. Under the DMCA, any third
party that suspects copyright infringement can subpoena an Internet service
provider for the names and addresses of suspected infringers. All that's
required is the signature of a court clerk. That strikes me as a violation
of privacy and -- because the subpoena does not require a judge's approval
-- a violation of the right to due process.
But that's not all the DMCA does. It allows the big media conglomerates
unprecedented control over how we use our digital media, including music,
movies and books. Within a few years, every CD we buy will be "copy
protected." You may only be able to copy each song once, but not play it on
your MP3 player. Or, if the test-marketed versions are any indication, you
won't be able to make any copies at all of the music you rightfully own.
DVDs have used copy protection for years, which explains why you can't
fast-forward through that FBI warning.
These technologies -- and the law that makes them permissible -- concern me
far more than the recent lawsuits do. That's because they take away our
rights to "fair use," a concept in copyright law that predates our
Constitution and, until recently, was anything but controversial. Fair use
allows a scholar writing a critique of popular history to excerpt a small
portion of Stephen Ambrose's "Undaunted Courage" without asking Simon &
Schuster if it's okay. Fair use gives you the right to copy a chapter from
a library book for your personal use. It allows you to copy videos (the
ones you've bought legally) to keep at your summer home, or to mix CDs so
you can hear the music you own in whatever order you want.
Fair use allows for the fluid exchange of ideas, which we've generally
considered an essential aspect of democratic society. The DMCA takes this
away by making it illegal to "circumvent a technological measure that
effectively controls access to a work." In plain language, this means it's
illegal to break into a CD, DVD or e-book you bought, even if the reason
you need to make a copy is perfectly legal.
So far, consumers haven't raised much of a fuss over the DMCA. Of course,
it's a lot easier to get indignant about a schoolgirl being pilloried by a
conglomerate because she downloaded "If You're Happy and You Know It Clap
Your Hands" (one of the songs Brianna LaHara, the now famous 12-year-old,
was sharing) than it is to get worked up over abstract concepts that don't
have a lot of real world consequences -- yet. But it's no accident that
those institutions we rely on to watch out for our interests as consumers
of ideas -- from the American Library Association to the American
Association of Universities to the Consumers Union to, natch, the American
Civil Liberties Union -- support repealing or rewriting the DMCA.
And yet a lack of public awareness and congressional support has doomed
various legislative proposals to reform DMCA. The exception may be two
bills now before Congress. One would, among other things, require a company
to file suit before subpoenaing Internet service providers for user
identities under the DMCA. The other would make it legal to circumvent
copy-protection technologies to make otherwise legal copies.
All of which brings us back to the lawsuits. What I'd like to see is a
community of technology users -- and this includes just about all of us now
-- who respect the laws that are on the books, and therefore restrain
themselves from sharing copyrighted material, while agitating for the
repeal of laws that threaten our protections and liberties. I'm hardly
reassured by those two-thirds of American downloaders who -- according to a
recent poll by Pew Internet and American Life Project -- don't know or care
whether what they download is protected by copyright. If they can't be
bothered to respect the perfectly reasonable provisions of copyright law,
I'm hardly confident they can be relied on to fight against the
unreasonable ones.
Oh, and Wayne? You can count the number of people giving Joe Stalin a good
name on one hand. Most of them -- Idi Amin, Pol Pot -- are dead. Among the
few still living, none, to my knowledge, works at a music label.
Author's e-mail:
<mailto:Jeffhowe@xxxxxxxxxxxx>Jeffhowe@xxxxxxxxxxxx
Jeff Howe is a contributing editor for Wired magazine.
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