Everything Old is New Again
If an author has among his writings a musical composition, the only possible way of “securing” to him the “exclusive right” thereto is by giving him the monopoly of this musical composition, no matter in what form it may be represented; otherwise, he gets only a partial exclusive right thereto. No composer can be truly said to have “the exclusive right” to his musical composition writings secured to him so long as others have the right to publish, and sell them without his consent . . .
Leave off of that quote right there and it could be about digital file-sharing and made last week. However, the last six words are in fact "in the form of perforated music" and the statement was made in 1908 in a landmark Supreme Court case determining that player piano rolls did not fall withing the definition of a "copyrighted work" that was on the books at the time. In 1908, in the case White-Smith Music Publishing Company v. Apollo Company, the Supreme Court determined that technology had overtaken the existing law of copyright and the law as written did not cover the new technology.
On one side of the case was a traditional music publisher that had long made its money from selling sheet music. People would buy the sheet music, take it home, and play the songs themselves on the piano in their parlor. On the other side was an upstart pianola manufacturer that was using punched paper rolls to cause their pianos to replay performances of songs "recorded" on the rolls by performers paid to do so. People would buy a piano roll, take it home, and play the song themselves on the player piano in their parlor. The question was whether those rolls were "copies" of the work under the copyright law at the time. Because of the way the Copyright Act of 1831 was worded, since it was written at a time when the existence of phonorecords and player pianos--let alone radio stations, jukeboxes, or napster--was largely inconceivable, it was pretty clear that piano rolls weren't copies. As a result, musical compositions could suddenly and legally be freely distributed by player piano manufactures without paying a royalty to the original publisher of the work.
Of course, the law as it shook out struck pretty much everyone as being unjust and in need of repair. In his concurrence with the Court's judgement, Justice Oliver Wendell Holmes wrote "On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow ought to be made so by a further act..." more or less inviting Congress to fix the Supreme Court's ruling and restore to the owners of musical composition the exclusive right to produce copies and derivative works.
Congress paid close attention to Justice Holmes, and the very next year passed the landmark Copyright Act of 1909, a piece of legislation that established much of what we currently understand about how intellectual property works. Among the most important innovations of that act was the introduction of the "Mechanical Royalty," or a statutorily required royalty that anyone wishing to reproduce a "performance" had to pay to the publisher of the "song" performed. This bifurcation of "performance" and "song" has long term consequences which have led to much of the trouble with the Music Industry in the United States. Among the many issues, the fact that ownership of "publishing" is something separate from the ownership of the "recordings" that record companies contracted with artists to produce led to the vast and repulsive exploitation of singer-songwriters in a way that made huge amounts of money for record companies. It made so much money, in fact, that the singer-songwriter has, at this late date, largely replaced the performer and songwriter of the past. You may have heard that "Michael Jackson owned the Beatles Catalog?" That's what this means. In getting their first record deal, the Beatles bargained away ownership of their publishing, which then made a fortune for the owners of it, who in fact had nothing to do with writing "She loves you," "Yesterday," or "Twist and Shout." Michael Jackson later bought the publishing from the bankrupt music publisher who owned the catalog. There are companies that just go out and buy up publishing rights like this and make tons of money off of other people's songs. It was built to work that way because the law, like always, was written to respond to the industry that distributes intellectual property, not to protect the creators of intellectual property.
So we're clear about this, this is a form of theft that is completely legal under current copyright law. Whatever illusions you may have that copyright exists to protect artists, let them go. That's not what copyright is for in our modern society. Copyright in our modern society is a protection of the right to profit off of the distribution of intellectual property. Get that fact straight and much of what appears weird, confusing, and arcane in copyright law becomes much clearer.
For example, for those of you who still have physical, tangible copies of Albums, go grab any one of them at random. Take a look at the the fine print listed somewhere in the liner notes or on the record sleeve. There you will find a notice that says something like this one from Sting's 1991 album The Soul Cages "All songs were written and arranged by Sting © 1990 Magnetic Publishing, Ltd./Blue Turtle Music (ASCAP). All rights reserved." and then below it: "℗ & © 1991 A&M Records, Inc. All rights reserved."
That first notice is the copyright notice of the publishing, noting that the publishing rights are owned by two companies: "Magnetic Publishing Ltd." and "Blue Turtle Music." It also notes that the performance rights are administered by ASCAP. Now, there's some complexity with how publishing rights are traditionally dealt with by record deals, by which I mean all kinds of scammy bullshit that goes on all the time which has made it a general practice that most songs' publishing rights are divided up and assigned to a few different companies, and usually one of them is owned by the record company.
The second notice is the copyright for the recordings and the liner notes. Notice that these all belong to A&M and Sting doesn't appear to have any ownership whatsoever in the recordings that he had made for A&M. Recall that this was a record made in 1990, a period in time when Sting was more or less at the height of his post-Police fame and popularity. Note that it is not at all remarkable that even an artist with that kind of clout and pull was not able to wrest any ownership of his work away from his record company, even with an uber music manager like Miles Copeland negotiating for his side.
Why? Because ownership is where it's at. Any record company would pay ludicrous royalties before it would give up that ownership because that ownership gives them control of distribution, and it is the right to distribute, not the right to sell, that generates money for the owner of a work. Always has been, always will be. That's why the big major media companies are still in business and still making money even as all the brick and mortar retail sellers of music and movies are going out of business. Because those retailers had no control over distribution. They were servants of the distributors, they had to do as they were told to get into the monopoly of the desirable product to sell. And that servitude was their death sentence. They had no control over their own destinies.
This state of affairs is a result of the Copyright Act of 1909, and that is a result of copyright not keeping up with new technology.
Fast forward a century and we are in another situation of similar magnitude. And that crisis has produced misinformed pleas like this post by a very well-meaning artist despairing at the state of affairs current musicians face: Letter to Emily White at NPR All Songs Considered.
Now, don't get distracted. There are statements in that article about how supposedly fair record contracts are that are at best dubious and at worst outright falsities. Recall, as shown, supra, that since 1909, copyright law has been structured to favor distributors and exploit artists. I'm hardly the first to notice this. Chuck D has made a better case than I can in this limited space that Black artists, in particular, are owed reparations as a community for the exploitation they were subjected to during the 20th century by entities now largely owned by major media corporations. And it's been ongoing, into the present, as Courtney Love noted at the birth of the "piracy crisis" as she broke down the exploitation of the modern record contract: Courtney Love Does the Math. It's hardly a new thing, contrary to what Lowery writes, that artists have no control over their work. That they have any control over their work and any ability to profit from it at all is more the historical anomaly. See, for example, the 18th century Scottish composer Jamie McPherson for a representative example of what life used to be like for musicians. No musician should ever forget that Mozart died broke.
But I'm not interested in nitpicking at the corners of the argument in the open letter to Emily White. Whatever the problems of file sharing, the crimes of the majors and the RIAA are greater against artists as a whole, sure, but agonizing over the injustices of late capital, as much fun as it is, is no means to a productive end. And also, I want to make the point that I think David Lowery is right in pointing at the "free culture" movement and the profiteers behind it. Ahem, I'm looking at you Cory Doctorow. Lowery's got a finger on the pulse of the real problem, but my bone of contention is that he's not following the rabbit hole down far enough and he's pointing his finger at Alice for eating the cake and stepping on everything now that she's a giant, rather than taking to task whatever idiot left the cake out with a sign saying "eat me" on it in the first place. It's not Emily White who owes a penance, it's her Internet Service Provider.
So no, the point I want to make is that I think artists as a group have been duped by the majors into agitating in the wrong direction for their rights and as a result this whole conversation is framed wrongly and directed at the least culpable parties. And that's unfair.
The problem isn't over sales, it's with the means of distribution. Right now the people who are ripping off artists aren't the kids downloading songs. Period. The kids are just being rational consumers. They have a choice between two distributors, one of whom will charge them for downloading a song and one which will let them download whatever they want so long as they click their ads and pay their monthly internet bill. The people who are pirates, that is, the ones who are making money off of other people's labor and property, are the broadband internet providers who enable piracy and get paid for it without paying a royalty, the websites that host the torrent files, and the advertisers who ship advertising revenue to those sights. This should look familiar because we've seen it before. It's a new means of distributing intellectual property and it's one that the existing copyright laws don't address.
And why don't they address it? Because the industry that has always controlled distribution has focused the debate on the wrong people. Ever since the halcyon days of Napster in the late 90s, the record industry has been complaining about the consumer. And they do this for a reason, because they know they have no moral high-ground where it comes to making sure that artists control the distribution of their material. The record industry has never been in favor of that and the last thing they want Congress to do is to fix the distribution channels so that they are no longer able to exploit artists the way they always have. So what do they do? They agitate for useless fixes to intellectual property law like the Digital Millennium Copyright Act which focus heavily on the receiver of the pirated copy, and sue teenagers and little old ladies for millions of dollars over downloading songs. And who is missing in this? The cable internet providers. Why might that be? Well, the vertical integration of distribution and publishing might have something to do with it. Time Warner isn't just a major media company anymore, it has also been a cable internet provider, and mark my words, it will become one again. Comcast owns NBC now, and a brief glance at the media pages and industry press will note that this sort of integration of content and distribution is happening all over the spectrum. And this integration of distribution and content has been written on the wall for a long time now. Time Warner founded it's cable division in 1989.
Why? Because the media companies know, and have always known, that distribution is where the money is at. And now that download speeds are getting faster everywhere, and are even starting to go mobile, distribution can only make them more money.
And yet the musicians are now bickering with their fans about not buying their music. I have friends who are working musicians and songwriters who feel very strongly about this. And I feel for them. But they're tilting at windmills because while they're telling their fans to spend their limited funds on paying for digital downloads, to date only a few artists have made the direct case that the distribution channel is actually where things have gone wrong. Charitably, I think this is because artists who pay attention to this stuff have been sold a bill of goods by the record industry. They've been told that the problem is digital downloading, not providing a medium that allows downloading to take place. Fix that, and where you still have piracy there may be a case that kids need to be scolded about choosing the cheapest distribution channel. But structurally, right now, what the kids who are choosing to download free songs are just doing what the did back in the nineties when Sam Goody, Tower Records, and other chain record stores were putting the mom and pops out of business.
Rational consumers will always take the cheapest option all else being equal, and where the abstractions of intellectual property and ownership are involved so the transfer of a file doesn't deprive the person you get the song from of their copy of the song, the analogy to theft that this narrative makes doesn't really make a lot of sense. It's theft if I break into your house and and take all your LPs. If I broke into your house and download the contents of your hard drive onto my Ipod, while it may be illegal, is of a very different character. I'm not taking some tangible piece of property from anybody, I'm taking an action that I don't have a legal right to.
And this is something that we should get really clear on, as far as property crimes are concerned the closest analogy to that act is not theft, it's a trespass to chattel. And trespassing is a lot less morally fraught than theft is. In most states it's not even criminal, it's enforced through tort law. And that makes the equivalency between theft and trespassing both false and therefore a surefire way to create cognitive dissonance. Even if the kids who are trespassing don't have the tools to do the analysis, they will intuitively sense that the claim is somehow off and give it less credence as a result.
And yes, trespassing is illegal and for good reason. And yes, trespassing can do a lot of serious, costly damage. But it isn't theft and it isn't the moral equivalent of theft. And as an aside, I think the trespassing analogy is even a little bit strained, because Emily White isn't really downloading music for free. She's paying her internet provider something like 50 bucks a month for the ability to download unlimited songs. Is it really Emily White's problem that Comcast doesn't really have the right to sell her that service? If the only option other than paying for the toll road is to cut across your lawn, is it really Emily White's fault that she chooses to take the trespassers route, particular when Time Warner Cable is there laying out the red carpet across your flower bed and that's a service she's already paid for? Who is it that's really trespassing? I humbly suggest that it isn't Emily White.
But I digress, because even if that dialog gets fixed and artists replace "don't steal my shit" with "you kids stay the hell off my lawn" in their complaints about digital piracy, it remains a fact that the problem of distribution making a fortune for certain corporate interests will not be addressed even if that campaign is wildly successful and leads to some 10% of all downloaders to start voluntarily paying for music. And 10% is a realistic figure; I'm getting that number from NPR's subscriber rate. Roughly 1 in 10 public radio listeners are coerced into pledging any amount of money to their local NPR affiliate. And that's with week-long pledge drives constantly hounding regular listeners to cough up some cash based on what they can afford. With all of that, they get 10% of their listeners to give a few bucks per year. That's not a good business model for individual performers. It won't work.
No. The law needs to be fixed so that broadband providers and file sharing networks pay for the profit they are getting off of file sharing. The problem is that this particular form of distribution hasn't been monetized correctly in copyright law, not that kids want music for free. This is a technological challenge that needs a legislative fix just the way sheet music publication, phonorecords, jukeboxes, and radio required legislative fixes. Those technologies changed distribution and allowed companies to start making money off of distributing other people's intellectual property without paying a royalty. And the same thing is going on now with digital file-sharing. If you want to fix that, you have to fix the distribution channel. And you're not going to make that happen by getting on board with the major media narrative that it's the demand side that's the problem, not the supply chain. And that's not a moral position, it's pure economics. Demand side controls on markets rarely work.
If you don't believe me, take a look at the market for illegal drugs and ask yourself how well that "Just Say No" business Nancy Reagan started worked out. Guilting the music consuming public into paying for songs is the economic equivalent of "just say no." Yes, you'll get a certain amount of traction with a certain part of the public with it, but it won't fix the problem and it will distract your resources from the real source of trouble. As most of the pot smoking, coke snorting, acid dropping musicians I know can attest, taking drugs isn't the problem, addiction, prohibition, and uncertain composition are the problem. Just like here, kids looking for the best deal isn't the problem, it's that there are well funded media interests legally letting them make illegal copies for free, and doing so with impunity. Nobody is even talking about them. They're talking about Emily White.
I want to be clear about this, I'm not saying this because I want free songs. Free songs is not the answer and it is not a noble goal. I get most of my music through subscription download services and on vinyl (often used, although nobody but Garth Brooks has ever bitched much about reselling records). I want more musicians to be able to make a living with their art and to be compensated for their work. But to do that you have to put artists in control of not the retail sale of their work, but the distribution of it. As long as you keep the system gamed so that artists and consumers are at odds with eachother and various distributors are allowed to ship these songs around without having a license from the artist to do it--which is what broadband cable does today, right now, completely legally--artists are going to continue to be screwed by the media companies. And that is not the fault of consumers. Consumers can only be expected to have a certain amount of sophistication about this stuff and can't be held responsible for the dysfunctional nature of the market they are participating in. To fix the market requires legislative action directed at that goal with the rights and livelihoods of artists in mind, and with the real problem of the uncontrolled distribution with impunity in its sights. Without that, musicians will, as always, get fucked. If Paul McCartney and John Lennon couldn't avoid getting ripped off by this shell game, any other artist's chance of avoiding the same fate is pretty slim.