The last of the dinosaurs
p2pnet news view | P2P | Music:- The corporate music industry depends absolutely on three (to it) essential elements, and they are »»»
- Bullshit
- Lies
- Confusion
And Nashville entertainment lawyer and p2pnet contributor Fred Wilhelms has seen it, and heard it.
All of it.
He’s also the nemesis of Big Music’s (un)SoundExchange, an (un)American organisation meant to help artists get paid, but which has an unfortunate tendency to not only lose track of them, but also their money.
CounterPunch’s Dave Marsh once said of him, “If the corporate music industry had any ethics, Wilhelms would be its ‘ethicist-in-chief.”
Now, “The evidence is clear,” Fred says. Time is, “running out on labels and studios who build business models based on scarcity of product.
“Adding rapacious greed to the image of labels and studios helps further demonize them, but the fact remains that they are truly the last of the dinosaurs in an environment that has grown incredibly inhospitable to dinosaurs.”
Artists to fans to artists
Famed UK musician and activist Billy Bragg, and myself, p2pnet founder Jon Newton, are close to launching the web’s newest music site, a2f2a.com, the first blog created specifically for fans and artists, by fans and artists.
The reaction from p2pnet readers has been, and continues to be, interesting, with Henry Emrich, another regular contributor, scornfully attacking a2f2a, Billy and me.
It all started with UK singer LilyAllen’s widely publicised attack dissing P2P file sharing.
“France is once again trying desperately to do the bidding of the corporate entertainment cartels by implementing a law which would see ‘illegal’ downloaders thrown off the net without proof of wrong-doing, as it’s defined by Vivendi Universal, EMI, Warner Music and Sony Music, on the one hand, and Time-Warner, Fox, Disney, Columbia, Paramount and MGM on the other,” I said shortly after the news hit the lamscream media, going on:
“And that’s the way to go, implies Lily Allen, a UK singer whom nobody outside of the UK had heard of until she started shouting the odds about file sharing.
“Elton John also jumped on the bandwagon, but the wheels had started turning when Britain’s The Times, a prestigious newspaper until it was snapped up by Rupert Murdoch, ran a whiny Allen OpEd which, by an amazing coincidence, had previously appeared in Allen’s MySpace thingy, MySpace also being a Murdoch possession.”
Lily’s rant was, “quickly disseminated by the lamescream media and this, in turn, led to a hurriedly convened meeting by the Featured Artists Coalition, of which Billy is a member,” I said, pointing out FAC members released an official statement in which they »»»
overwhelmingly … support a three-strike sanction on those who persistently download illegal files, sanctions to consist of a warning letter, a stronger warning letter and a final sanction of the restriction of the infringer’s bandwidth to a level which would render file-sharing of media files impractical while leaving basic email and web access functional.
‘There’s no technical solution …’
But, “I accept that FAC need to deliver a better message that clearly states where we stand on file-sharing, but you have to understand that the vast majority of artists are still wedded to the record industry view of downloading as a threat,” said Billy Bragg in a Reader’s Write, going on »»»
There were over 60 artists in the room last week when we were discussing how to respond to the industry’s demand that the govt pass laws to suspend internet connections, only a dozen from the FAC. Despite evidence that technical sanctions will not work from several IT experts that we invited, the majority was clearly in favour of some kind of sanction. In order to try to stop disconnection, we opted for bandwidth squeezing as a compromise between all of our positions. Our task now is to convince our colleagues that there is no technical solution, but this will take time.
Until we can get a critical mass of artists to understand that the record industry doesn’t always act in our best interests and that we need to take the initiative on the issue of copyright and access, we have to keep engaged in discussion and education. Check our website – we have an education event for fellow artists on Monday night.
The Three Strikes plan is the principal bone of contention.
For further background
- Billy Bragg solves the file sharing problem
- Yeh, Billy Bragg, but what about the indies?
- Billy Bragg to p2pnet …
- We are the walrus. Or, thank you Lily Allen
- ‘Just some stuff to think about, Billy’
- Walruses and sock puppets
- Dear music lovers …
- Dear Dick Huey …
- Artists to Fans to Artists: a2f2a
- Music in the 21st century: framing the debate
Dire straits?
Anyone who’s been following the progress of the corporate music dinosaurs who are, to all intents and purposes, Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian), knows they’ve been lurching from one tar pit to another as they struggle to gain control of how music is distributed online, by whom, and by what means.
They claim to be in dire straits. But are they?
In an October 10 p2pnet post, Artists to Fans to Artists: a2f2, in one of his comments, “Okay, FIVE percent of [corporate music industry] albums are profitable — according to the label executives themselves,” says Henry.
But, “The percentage of successful record releases isn’t nearly as important as the audience’s willingness to buy into that number,” Fred says in an itemised response to some of Henry’s thoughts and accusations. “We shouldn’t believe any unsubstantiated number generated by the record industry regarding how and where they make money. It is in the industry’s interest to make their job look as tough as possible, and the five percent figure quoted earlier is just an example of that.”
Click here to see the original.
Below, I’ve posted Fred’s conclusions as straight comment without including the Reader’s Writes which sparked them.
“In blunt point of fact, we do NOT know how many releases are profitable in the short term, or, more importantly, in the long term,” says Fred, referring to Henry’s 5% statement, continuing »»»
We do NOT know with any certainty how the value of the label is increased by possession of the copyrights on recordings. We do NOT know how the profitability of individual recordings affects the bottom line. The failure rate was cited support the contention that the major label business model has “ALWAYS” been a failure, when, to be concise, the success or failure of individual releases has nothing to do with the success or failure of the model.
Here’s what we DO know for certain about record industry economics –
On the basis of royalty account books, many recordings do not make back their initial investment from the initial release. This is as much the result of sharp royalty bookkeeping practices as it is actual sales, and royalty calculations only deal with part of a label’s revenue streams.
There’s a reason why all those independent labels were gobbled up by the majors, and why almost all the majors were gobbled up themselves by hardware manufacturers and water utilities; they MAKE money, they don’t lose money. Certainly, there’s an element of wildcatting to it; you can drill a lot of dry holes before you hit a gusher. The fundamental, and very important difference, however, is that all those record company attempts that don’t hit paydirt immediately continue to be valuable in terms of adding to the catalog, even if you don’t strike oil immediately.
It is purely anecdotal, but consider what happened to the value of the copyrights on Nick Drake’s recordings after that VW commercial used “Pink Moon.” What looked like a dry hole for thirty years began to produce rivers of cash.
Try to pry some old masters from a major label’s vaults (even unreleased masters from a band that was dropped 40 years ago without a single release, like I have). The fact that you think the masters might be valuable is justification for them keeping them from you until they figure out what that value is.
I have yet to hear a good rationalization for how attacking someone for having an opinion actually addresses the subject of the opinion. Calling [French presidetn Nicolas] Sarkozy a hypocrite doesn’t tell me what’s wrong with the three-strikes law, or why it’s wrong. All it tells me is that someone disagrees with him, and that that person is willing to substitute a judgment on his personal shortcomings for a discussion of the substance of his actions. If those comments are made believing that they will intimidate those people, or that they will hold their tongue so that someone doesn’t excoriate them in the future, I think someone is assuming far too much credit in controlling the discussion.
Some people seem content to consign “sinners” (deemed such for their failure to embrace a given opinion as the one true faith) to everlasting Hell simply for espousing an opinion that differs from theirs. I come from a different philosophical direction; one where it is possible to “hate the sin but love the sinner.”
I’m not a Crusader on the way to the conquer the Holy Land by vanquishing the infidels. I’m more of a missionary carrying the Gospel to unbelievers. The Crusaders discovered, to their lasting dismay, you really can’t kill all the nonbelievers, especially if you have to fight on their turf. A big problem the Crusaders discovered was that when you killed an infidel, there seemed always to be another to take his place. So it is with major label executives. They spawn like crazy. The missionaries discovered that many of those “heathens” had belief systems as complex and sophisticated as their own. Faced with the prospect of giving up, they learned to use that information to their advantage. The calendar of Christian holidays shows that those early missionaries were willing to adapt when they could and co-opt when they couldn’t adapt. I think it’s a lesson worth keeping in mind.
Bragg’s vote for sanctions didn’t make him “look very p2p friendly,” but I think you have to stop dealing with “looks” and start dealing with reality, when there are more than one potential reason for his actions.
His vote is not necessarily evidence that he is steadfastly anti-p2p. His vote, and the others who voted with him, may simply be the result of a lack of accurate information, but that doesn’t make him worthy of personal scorn.
“Sonny Bono isn’t a really good object lesson here. For the first point, his support of copyright extension was neither manipulated or under duress or the result of narcissism, which are the options that were given.
This is another situation that really doesn’t lend itself to limited option thinking.
Sonny Bono supported copyright extension because he believed it was in the best interest of recording artists to preserve the means that had always provided compensation to them. Rightly or wrongly, strictly from a philosophical basis, he believed he had both a right and an obligation to leave the ability to earn money from recordings to his heirs. He said that they would enjoy the fruits of his other investments, why not his recordings, too?
That’s what he told me directly, and I have no reason to doubt he was being honest in telling me that. (I was in DC meeting with the IP lawyers that were driving the actual drafting of the legislation to see if I could influence, on behalf of my own client, proposed language involving registration of derivative works. I wasn’t successful, but I had a nice lunch with Sonny.) I think he lacked a lot of information to counter that view, and I never got the chance to carry on the conversation after I learned a lot more. Remember this all took place in 1994-1995, when p2p was not on anyone’s radar and no one believed that technology would trump the law. No one could foresee that copyright was going to become the main weapon in the fight against downloading, despite its severe limitations in such a function. As far as his contribution to the bill, you really have to remember that the “Bono” bill was only named for him after he died.
He was one of a dozen or more sponsors of the original House version of the bill. I seriously doubt anyone actually voted for the bill after he died because “Sonny would have wanted it that way.”
It wasn’t just the record labels that were looking for copyright extension, either. So were the music publishers, and the book and magazine industry. It made perfect political and economic sense for them to seek to extend the means by which they made money. Was it “right?” That’s a different question. Could it have been prevented? That’s still another question. Both are moot at this point.
This discussion isn’t about copyright law. It’s bigger than that. This is how you avoid talking about copyrights in the new discussion:
1. By setting forth what we know about copyright: it is a legal fiction intended to protect the rights of creators in their works by giving them control over distribution. It is not a God-given right and it is not the natural order of things.
2. By acknowledging that no one can control distribution of digital content through the Internet without infringing on the fundamental human rights of everyone who accesses the Internet for whatever reason.
3. By getting everyone in the conversation to agree that the property rights granted under copyright must be subservient to the greater rights of free speech and free access to information, and that restricting access to information, by “throttling” or any other means, is a violation of those fundamental human rights.
4. Copyrights used to work well. They don’t work well now. The main function copyrights now provide in regard to digital distribution of creative works is to give copyright holders a blunt instrument to use against someone unlucky enough to be caught engaged in the unauthorized distribution of the copyrighted work.
What we need, in essence, is a compensation scheme for creators that does not involve any attempt to control distribution. We might learn from the history of copyright, but we are not bound by it. If we disengage the concept of distribution from the concept of compensation, all other options are open, and that’s how you avoid debating the fine points of fair use and the rest. If you need to look at it in terms of copyright, consider it a re-definition of “public domain” to reflect the reality of what the public now has unfettered access to, but I think that using old terminology carries unnecessary baggage. If we come up with a workable compensation scheme, we can name the components whatever we like. Maybe you can do all this by revamping the copyright scheme, but I think that will be an effort from the ground up, anyway, so why not start fresh?
We can deal with the issue of impostor posters by focusing on what they say rather than who says it. If it has value, it has value regardless of the source. It would have been unfortunate if “Billy Bragg” turned out to be an impostor, but all that would have been wasted would have been a couple days and a couple hopes and dreams dashed for the moment.
Dealing with artists who speak on behalf of labels requires no change in direction or tactics. You deal with what they say rather than attack them personally. Frankly, calling people “whores” is only going to give them, and others who see that behavior, an easy excuse to dismiss everything else you say. You fight disinformation with information, not with invective. Most artists, like most people in general, are capable of figuring things out for themselves when they have the relevant information. Calling them whores isn’t the way to open the discussion.
Loss of “artistic control” is a legitimate concern, under any regime. p2p proponents are going to have to address it and explain to artists what is possible and what is not in the new environment. If control is the pivotal issue, the new ground rules that exist today say you can maintain absolute control only by not releasing anything to the public, and that’s about it. The labels don’t need scare tactics in this regard. The fears of loss of “artistic control” are legitimate. The function of the upcoming discussions will be to see if there is room in the new system to permit “artistic control.”
The issue of moral rights is not inevitably welded to copyright. That’s also a recent human invention that can be reversed by the same process by which the linkage was created.
I think Billy’s concerns about political use of his songs can be addressed by recognizing moral rights separate and apart from property interest. Other creators have them, there’s no reason why it can’t be extended to songwriters and performers. Frankly, the few times I have been involved in situations like this, the reason why a candidate has stopped using a particular song in a campaign has more to do with avoiding the public embarrassment of having the songwriter or performer object than it has with avoiding copyright infringement charges. Here’s one example (where my name gets misspelled, much to my mother’s consternation):
http://minnesota.publicradio.org/collections/special/columns/polinaut/archive/2006/08/mngop_takes_dow.shtml
“I *realize* p2p — and other aspects of digital media distribution — have drastically lowered the “barriers to entry” and suchlike. That “growing middle-class of artists” you’re talking about is a wonderful thing. But it also that expanding pallete of potential business-models which makes the Major Labels’ perpetual screw-job MUCH more difficult.”
The expanding spectrum of choices among business models is a good thing. Every artist will have a greater choice, including the choice of affiliating with a major label, if the label want them. It really isn’t a matter of leverage, because few artists looking for a major label contract are going to seriously look at alternatives. They know what they’re getting into.
Of course the labels are currently benefiting from extension of copyright, but not in the way they envisioned when the Bono Act was passed. Copyright is now essentially a weapon rather than a shield. They aren’t using copyright to generate revenue, they’re using copyright to defend the perceived present value of the holdings from what they perceive as a devaluation by file sharing. It’s a pure defensive play, but it is what they’ve got to deal with, so they use it as best they can. In short, they continue to prop up the corpse of copyright because the corpse is still useful within the current legal context. As often happens, technology has transformed the economic landscape to the point where the laws lag behind. When gaps like this exist, the power of law is discredited. There is a constant need to reconcile law with reality, and we see that clearest now in regard to copyright and p2p. The industry clearly lacks the initiative or the originality to seek truly new business models. The impetus will have to originate elsewhere.
My reference to “throttling” working was meant as a possible partial deterrent, not as a panacea. Frankly, we don’t know if throttling will work at all, or very well. From a non-tech’s standpoint, it appears to me that, at worst, it will reinvigorate darknets and even sneakernets, so I am doubtful about the utility of a throttle, but that’s just my opinion. Maybe a proponent can step forward and explain how it is supposed to work and why they think it will.
And, as noted earlier, there has to be a balancing act between the commercial interests served by throttling and the basic fundamental rights to unfettered access to information. Maybe the Chinese come down on the side of throttling, but I don’t see anyone pretending to be a champion of human rights joining them on this one.
And let us dispose of one more erroneous belief. The labels and the movie studios are not making “record profits.” This is simply untrue.
According to Fortune magazine, Warner Music Group has reported losses in four of the last five years, with the one good year being the result of one-time asset sales. EMI has been hemorrhaging money for a decade or more without a break. Universal Music Group’s overall numbers have been propped up by acquisitions of music publishing outfits like BMG Music, but both the revenue and profit from the sale of recorded music has been flat at best. In the 4th quarter of 2008, Sony reported a 45% decrease in profits and a 22% decrease in sales revenue on recorded music.
They’re not doing fine.
The decline isn’t because of Napster, either. It is because of a busted model that expected business as usual after all the evidence of a sea-change was there.
The market has largely abandoned CDs for single tracks, but they keep pushing CDs. Digital downloads (legal ones) have replaced physical sales, but they keep pushing physical sales. Massive distribution networks fail when there’s nothing to keep the pipelines full, yet they prop up those pipelines and even build more.
Recorded music not only has to face p2p, but an incredibly expanded spectrum of entertainment choices, and they have been slow to react in a positive manner. In the face of competition, relative prices have risen, not fallen.
Movie studios are only a half-step behind. It has been years since the business showed a net profit on box office sales. The once-lucrative DVD back end has cratered in the last eighteen months, and only TV licensing keeps everything afloat. The prospect of broader on-demand viewing and the availability of free (ad-driven or unauthorized) Internet access is going to kill that soon. The evidence is clear, time is running out on labels and studios who build business models based on scarcity of product.
Adding rapacious greed to the image of labels and studios helps further demonize them, but the fact remains that they are truly the last of the dinosaurs in an environment that has grown incredibly inhospitable to dinosaurs.
“The debate is going to need hard facts and well reasoned arguments if it is going to challenge current perceptions,” says Wlhelms, adding:
“Focusing on who said what rather than what they said is going to severely undercut the impact of the substantive issues that might be raised in those posts.
“If we open some eyes, we will turn heads, and then anything is possible.”
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
October, 2009
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The percentage of successful record releases isn’t nearly as important as the audience’s willingness to buy into that number. We shouldn’t believe any unsubstantiated number generated by the record industry regarding how and where they make money. It is in the industry’s interest to make their job look as tough as possible, and the five percent figure quoted earlier is just an example of that. In blunt point of fact, we do NOT know how many releases are profitable in the short term, or, more importantly, in the long term. We do NOT know with any certainty how the value of the label is increased by possession of the copyrights on recordings. We do NOT know how the profitability of individual recordings affects the bottom line. The failure rate was cited support the contention that the major label business model has “ALWAYS” been a failure, when, to be concise, the success or failure of individual releases has nothing to do with the success or failure of the model.
Here’s what we DO know for certain about record industry economics –
On the basis of royalty account books, many recordings do not make back their initial investment from the initial release. This is as much the result of sharp royalty bookkeeping practices as it is actual sales, and royalty calculations only deal with part of a label’s revenue streams. There’s a reason why all those independent labels were gobbled up by the majors, and why almost all the majors were gobbled up themselves by hardware manufacturers and water utilities; they MAKE money, they don’t lose money. Certainly, there’s an element of wildcatting to it; you can drill a lot of dry holes before you hit a gusher. The fundamental, and very important difference, however, is that all those record company attempts that don’t hit paydirt immediately continue to be valuable in terms of adding to the catalog, even if you don’t strike oil immediately. It is purely anecdotal, but consider what happened to the value of the copyrights on Nick Drake’s recordings after that VW commercial used “Pink Moon.” What looked like a dry hole for thirty years began to produce rivers of cash. Try to pry some old masters from a major label’s vaults (even unreleased masters from a band that was dropped 40 years ago without a single release, like I have). The fact that you think the masters might be valuable is justification for them keeping them from you until they figure out what that value is.
I have yet to hear a good rationalization for how attacking someone for having an opinion actually addresses the subject of the opinion. Calling Sarkozy a hypocrite doesn’t tell me what’s wrong with the three-strikes law, or why it’s wrong. All it tells me is that someone disagrees with him, and that that person is willing to substitute a judgment on his personal shortcomings for a discussion of the substance of his actions. If those comments are made believing that they will intimidate those people, or that they will hold their tongue so that someone doesn’t excoriate them in the future, I think someone is assuming far too much credit in controlling the discussion.
Some people seem content to consign “sinners” (deemed such for their failure to embrace a given opinion as the one true faith) to everlasting Hell simply for espousing an opinion that differs from theirs. I come from a different philosophical direction; one where it is possible to “hate the sin but love the sinner.” I’m not a Crusader on the way to the conquer the Holy Land by vanquishing the infidels. I’m more of a missionary carrying the Gospel to unbelievers. The Crusaders discovered, to their lasting dismay, you really can’t kill all the nonbelievers, especially if you have to fight on their turf. A big problem the Crusaders discovered was that when you killed an infidel, there seemed always to be another to take his place. So it is with major label executives. They spawn like crazy. The missionaries discovered that many of those “heathens” had belief systems as complex and sophisticated as their own. Faced with the prospect of giving up, they learned to use that information to their advantage. The calendar of Christian holidays shows that those early missionaries were willing to adapt when they could and co-opt when they couldn’t adapt. I think it’s a lesson worth keeping in mind.
Bragg’s vote for sanctions didn’t make him “look very p2p friendly,” but I think you have to stop dealing with “looks” and start dealing with reality, when there are more than one potential reason for his actions. His vote is not necessarily evidence that he is steadfastly anti-p2p. His vote, and the others who voted with him, may simply be the result of a lack of accurate information, but that doesn’t make him worthy of personal scorn.
“Sonny Bono isn’t a really good object lesson here. For the first point, his support of copyright extension was neither manipulated or under duress or the result of narcissism, which are the options that were given.
This is another situation that really doesn’t lend itself to limited option thinking. Sonny Bono supported copyright extension because he believed it was in the best interest of recording artists to preserve the means that had always provided compensation to them. Rightly or wrongly, strictly from a philosophical basis, he believed he had both a right and an obligation to leave the ability to earn money from recordings to his heirs. He said that they would enjoy the fruits of his other investments, why not his recordings, too? That’s what he told me directly, and I have no reason to doubt he was being honest in telling me that. (I was in DC meeting with the IP lawyers that were driving the actual drafting of the legislation to see if I could influence, on behalf of my own client, proposed language involving registration of derivative works. I wasn’t successful, but I had a nice lunch with Sonny.) I think he lacked a lot of information to counter that view, and I never got the chance to carry on the conversation after I learned a lot more. Remember this all took place in 1994-1995, when p2p was not on anyone’s radar and no one believed that technology would trump the law. No one could foresee that copyright was going to become the main weapon in the fight against downloading, despite its severe limitations in such a function. As far as his contribution to the bill, you really have to remember that the “Bono” bill was only named for him after he died. He was one of a dozen or more sponsors of the original House version of the bill. I seriously doubt anyone actually voted for the bill after he died because “Sonny would have wanted it that way.”
It wasn’t just the record labels that were looking for copyright extension, either. So were the music publishers, and the book and magazine industry. It made perfect political and economic sense for them to seek to extend the means by which they made money. Was it “right?” That’s a different question. Could it have been prevented? That’s still another question. Both are moot at this point.
This discussion isn’t about copyright law. It’s bigger than that. This is how you avoid talking about copyrights in the new discussion:
1. By setting forth what we know about copyright: it is a legal fiction intended to protect the rights of creators in their works by giving them control over distribution. It is not a God-given right and it is not the natural order of things.
2. By acknowledging that no one can control distribution of digital content through the Internet without infringing on the fundamental human rights of everyone who accesses the Internet for whatever reason.
3. By getting everyone in the conversation to agree that the property rights granted under copyright must be subservient to the greater rights of free speech and free access to information, and that restricting access to information, by “throttling” or any other means, is a violation of those fundamental human rights.
4. Copyrights used to work well. They don’t work well now. The main function copyrights now provide in regard to digital distribution of creative works is to give copyright holders a blunt instrument to use against someone unlucky enough to be caught engaged in the unauthorized distribution of the copyrighted work.
What we need, in essence, is a compensation scheme for creators that does not involve any attempt to control distribution. We might learn from the history of copyright, but we are not bound by it. If we disengage the concept of distribution from the concept of compensation, all other options are open, and that’s how you avoid debating the fine points of fair use and the rest. If you need to look at it in terms of copyright, consider it a re-definition of “public domain” to reflect the reality of what the public now has unfettered access to, but I think that using old terminology carries unnecessary baggage. If we come up with a workable compensation scheme, we can name the components whatever we like. Maybe you can do all this by revamping the copyright scheme, but I think that will be an effort from the ground up, anyway, so why not start fresh?
We can deal with the issue of impostor posters by focusing on what they say rather than who says it. If it has value, it has value regardless of the source. It would have been unfortunate if “Billy Bragg” turned out to be an impostor, but all that would have been wasted would have been a couple days and a couple hopes and dreams dashed for the moment.
Dealing with artists who speak on behalf of labels requires no change in direction or tactics. You deal with what they say rather than attack them personally. Frankly, calling people “whores” is only going to give them, and others who see that behavior, an easy excuse to dismiss everything else you say. You fight disinformation with information, not with invective. Most artists, like most people in general, are capable of figuring things out for themselves when they have the relevant information. Calling them whores isn’t the way to open the discussion.
Loss of “artistic control” is a legitimate concern, under any regime. p2p proponents are going to have to address it and explain to artists what is possible and what is not in the new environment. If control is the pivotal issue, the new ground rules that exist today say you can maintain absolute control only by not releasing anything to the public, and that’s about it. The labels don’t need scare tactics in this regard. The fears of loss of “artistic control” are legitimate. The function of the upcoming discussions will be to see if there is room in the new system to permit “artistic control.”
The issue of moral rights is not inevitably welded to copyright. That’s also a recent human invention that can be reversed by the same process by which the linkage was created. I think Billy’s concerns about political use of his songs can be addressed by recognizing moral rights separate and apart from property interest. Other creators have them, there’s no reason why it can’t be extended to songwriters and performers. Frankly, the few times I have been involved in situations like this, the reason why a candidate has stopped using a particular song in a campaign has more to do with avoiding the public embarrassment of having the songwriter or performer object than it has with avoiding copyright infringement charges. Here’s one example (where my name gets misspelled, much to my mother’s consternation):
“I *realize* p2p — and other aspects of digital media distribution — have drastically lowered the “barriers to entry” and suchlike. That “growing middle-class of artists” you’re talking about is a wonderful thing. But it also that expanding pallete of potential business-models which makes the Major Labels’ perpetual screw-job MUCH more difficult.”
The expanding spectrum of choices among business models is a good thing. Every artist will have a greater choice, including the choice of affiliating with a major label, if the label want them. It really isn’t a matter of leverage, because few artists looking for a major label contract are going to seriously look at alternatives. They know what they’re getting into.
Of course the labels are currently benefiting from extension of copyright, but not in the way they envisioned when the Bono Act was passed. Copyright is now essentially a weapon rather than a shield. They aren’t using copyright to generate revenue, they’re using copyright to defend the perceived present value of the holdings from what they perceive as a devaluation by file sharing. It’s a pure defensive play, but it is what they’ve got to deal with, so they use it as best they can. In short, they continue to prop up the corpse of copyright because the corpse is still useful within the current legal context. As often happens, technology has transformed the economic landscape to the point where the laws lag behind. When gaps like this exist, the power of law is discredited. There is a constant need to reconcile law with reality, and we see that clearest now in regard to copyright and p2p. The industry clearly lacks the initiative or the originality to seek truly new business models. The impetus will have to originate elsewhere.
My reference to “throttling” working was meant as a possible partial deterrent, not as a panacea. Frankly, we don’t know if throttling will work at all, or very well. From a non-tech’s standpoint, it appears to me that, at worst, it will reinvigorate darknets and even sneakernets, so I am doubtful about the utility of a throttle, but that’s just my opinion. Maybe a proponent can step forward and explain how it is supposed to work and why they think it will. And, as noted earlier, there has to be a balancing act between the commercial interests served by throttling and the basic fundamental rights to unfettered access to information. Maybe the Chinese come down on the side of throttling, but I don’t see anyone pretending to be a champion of human rights joining them on this one.
And let us dispose of one more erroneous belief. The labels and the movie studios are not making “record profits.” This is simply untrue. According to Fortune magazine, Warner Music Group has reported losses in four of the last five years, with the one good year being the result of one-time asset sales. EMI has been hemorrhaging money for a decade or more without a break. Universal Music Group’s overall numbers have been propped up by acquisitions of music publishing outfits like BMG Music, but both the revenue and profit from the sale of recorded music has been flat at best. In the 4th quarter of 2008, Sony reported a 45% decrease in profits and a 22% decrease in sales revenue on recorded music. They’re not doing fine.
The decline isn’t because of Napster, either. It is because of a busted model that expected business as usual after all the evidence of a sea-change was there. The market has largely abandoned CDs for single tracks, but they keep pushing CDs.. Digital downloads (legal ones) have replaced physical sales, but they keep pushing physical sales. Massive distribution networks fail when there’s nothing to keep the pipelines full, yet they prop up those pipelines and even build more. Recorded music not only has to face p2p, but an incredibly expanded spectrum of entertainment choices, and they have been slow to react in a positive manner. In the face of competition, relative prices have risen, not fallen.
Movie studios are only a half-step behind. It has been years since the business showed a net profit on box office sales. The once-lucrative DVD back end has cratered in the last eighteen months, and only TV licensing keeps everything afloat. The prospect of broader on-demand viewing and the availability of free (ad-driven or unauthorized) Internet access is going to kill that soon. The evidence is clear, time is running out on labels and studios who build business models based on scarcity of product..Adding rapacious greed to the image of labels and studios helps further demonize them, but the fact remains that they are truly the last of the dinosaurs in an environment that has grown incredibly inhospitable to dinosaurs.
The debate is going to need hard facts and well reasoned arguments if it is going to challenge current perceptions. Focusing on who said what rather than what they said is going to severely undercut the impact of the substantive issues that might be raised in those posts. If we open some eyes, we will turn heads, and then anything is possible.
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