inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #0 of 79: David Gans (tnf) Mon 21 Aug 00 10:29
    



It's an interesting time to be a creative person.  Intellectual property law
and digital reality are colliding and diverging in various ways.

The WELL is the online home of some people with a lot to say on these
matters, and I thought it would be interesting to get a discussion going here
in the INKWELL.  I've invited three people in particular to join in here:



SCOTT ROSENBERG is managing editor and technology columnist at salon.com.
He's been a WELL member since 1990, an amateur musician, and a Napster user
since last December.  Here are the columns Scott has written about Napster:

<http://www.salon.com/tech/col/rose/2000/02/04/napster_swap/index.html>

<http://www.salon.com/tech/col/rose/2000/03/30/napster/index.html>

<http://www.salon.com/tech/col/rose/2000/07/27/napster_shutdown/index.html>

<http://www.salon.com/tech/col/rose/2000/08/07/breaking_law/index.html>




ADAM POWELL, CEO and co-founder of angrycoffee.com, is a writer, Web
developer, and musician.  He has published over 30 articles for Webmonkey and
Wired News and designed and produced Web and software interfaces for Wired,
Healtheon/WebMD, Hitachi, LEGO, America Online, Greenfield Online, and
Logitech.

As an employee at Wired Ventures from 1995-97 he was Production Manager of
Webmonkey, Web 101, Netizen, and The Rough Guides.  He has continued to write
for Webmonkey, penning the eight-part Adam's Multimedia Tutorial as well as
two-thirds of the MP3 Package.  In 1996 he created Fillet, a
popular ezine for lovers of food and wine, and the recipient of numerous
awards.  During an 18-month stint at Phase Two Strategies, a high-tech public
relations firm in San Francisco, Adam was the resident Internet expert,
advising and developing for all 16 clients.  In 1999 he was the
Technical Producer for www.myhealtheon.com and my.webmd.com.  He launched
www.greenrocket.com in January as an umbrella for an Internet audio community
and a consultation firm.

Adam has spoken as a panelist for Jupiter Communications, South by Southwest,
North by Northwest, the SF Internet Music Mixer, and Geekapalooza.  As a
professional musician, he is in his 12th year and plays with Resin.

Wall Street Journal cover, Industry Standard, CNET, it's all there!

<http://angrycoffee.com/press/index.html>





MIKE GODWIN is currently a law-and-technology reporter for American Lawyer
Media, specializing in intellectual-property issues.  He's the "IP Land"
columnist for AMERICAN LAWYER magazine, and chief correspondent for IP
WORLDWIDE magazine.

He is also the author of CYBER RIGHTS: Defending Free Speech in the Digital
Age.  He was staff counsel for the Elecronic Frontier Foundation for many
years.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #1 of 79: David Gans (tnf) Mon 21 Aug 00 10:33
    

This subject is of particular interest to me as a songwriter and performer
and as a record producer.

I make music available on the web to promote my career as a performer, but I
worry that it's going to be hard to make a profit on a studio CD if copying
is so easy -- and so culturally acceptable -- that my audience doesn't feel
compelled to buy a legitimate copy.

Last week, a compilation I produced was released by Arista Records.  It's a
collection of Grateufl Dead songs performed by other artists, including Bob
Dylan, Patti Smith, Elvis Costello, the Persuasions, et al.  Has it shown up
on Napster yet?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #2 of 79: Dave Waite (dwaite) Mon 21 Aug 00 11:23
    
Napster seems to have caught most of the public off guard.  The decision,
which I understand is still being fought, seemed to come quickly and
decidedly.  Was the issue that easy for a lower court ruling?  Do you think
it will stick?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #3 of 79: Declined To State (jrc) Mon 21 Aug 00 12:08
    

And is ultimately a foolish and losing struggle?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #4 of 79: blather storm (lolly) Mon 21 Aug 00 13:10
    
Is this the beginning of the complete transformation of the music
business into something that provides a more direct connection between
artists and listeners? Or is it just that the artists now get not only to be
ripped off by the labels, but by their fans also?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #5 of 79: Michael R. Walsh (mrw) Mon 21 Aug 00 13:12
    
One thing for sure:  if artists start making even less money than they do
now, there'll a be a whole lot less art to pass around in very short order.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #6 of 79: The salon stopped responding (rocket) Mon 21 Aug 00 14:10
    
Hi everyone.  In order:
<tnf>, I ran a bunch of searches and it appears that your GD cover album has
not yet been sucked into the various hacker collectives accessible via the
web.  I uninstalled Napster long ago, so I can't speak for that network.

<dwaite>, this question is probably best handled by Mr. Godwin.

<jrc>, the struggle to suppress p2p (peer-to-peer) networks is neither
foolish nor necessarily bound for failure.  Remember, the interests of the
big 5 have already squashed round 1 of mp3 piracy -- in 1998 thousands of
cease-and-desist orders were filed, rendered the previously effective
"search for|grateful dead, .mp3|" a useless coil of dead links. Napster
was a response to the first salvo, fired by the RIAA's backers.  It is the
return fire, not the shot heard 'round the world.

<lolly>, this is business as usual already.  mp3.com has been annexed by
the labels: they can't carry major label content in the my.mp3.com service
and they have to pay an estimated $100 million out to the big 5 just to
keep their doors open.  Napster will be shut down, most onlookers agree.
My own company, angrycoffee.com, has not been the target of record label
wrath because it's completely legal, but it certainly wouldn't surprise me
if we did after Napster is ordered to pull the plug this fall.  Gnutella
and Freenet are not ready for prime time.

Sluggish and reptilian as they are, the major labels have finally realized
that there is money in file sharing.  They hold all the cards, as in their
command are the copyright documents as well as a legal arsenal capable of
crushing all competition, provided the right precedent (Napster).

The key questions that need to be answered now: 
1. Who is going to sell the kids their mp3 subscriptions?
2. Will all the other players be the subject of lawsuits, or will they
purchase licensing agreements from the major labels?  

 
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #7 of 79: The salon stopped responding (rocket) Mon 21 Aug 00 14:38
    
I just read Scott's new article in Salon.  Mr. Rosenberg states: 

"(Napster) doesn't feel like theft; it feels like a great big communal
swap meet, where anyone can explore the enthusiasms of like-minded fans. "

This is Napster's argument, in a nutshell.  Hank Barry used the word
"share" 7 times in his introductory statements to the congressional
hearing last month.  

But how do the artists feel?  Not the fans, or pundits, or columnists, all
of whom have little reason to look this gift horse of free music in the
mouth.  

We have a lot of professional musicians here -- artists who make
their living from record sales. Do you agree or disagree with Scott's
statement?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #8 of 79: Declined To State (jrc) Mon 21 Aug 00 14:43
    

Perhaps I should be more clear. i was speaking in a logner context. the
nature of information delivery has changed. It did not use to be fungible;
now it is. One format is all formats, or vice versa. How could an
injunction prevent on off-shore site, or a site per day, or a million sites
opened on the same day. How can it prevent the swapping and sampling that
goes on one level of visibility down from Napster? I understand *why* it's a
problem; I just do not see that the p-roblem has a real solution.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #9 of 79: David Gans (tnf) Mon 21 Aug 00 14:57
    
Jon's point is a good one.

What Scott wrote --  "(Napster) doesn't feel like theft; it feels like a
great big communal swap meet, where anyone can explore the enthusiasms of
like-minded fans." -- is an accurate portrayal of the attitude out there, I
think.  That's the problem: the whole concept of intellectual property is up
for grabs today.

In the "jam band" subculture I work in, I have observed a striking inversion
of values.  People trade tapes (actually CDs more often these days, of
course) of their favorite performers' live shows, but have little or no in-
terest in those bands' commercial output.  In other words, they cvalue the
thing they can have for free and do not value the thing that costs money.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #10 of 79: Brian Slesinsky (bslesins) Mon 21 Aug 00 14:58
    
The thing about computers is that we tend to get used to the idea that
they will enforce the rules for us.  When filling out a web form, the
computer checks it for errors.  In computer games, the computer acts
both as an impartial judge and as the laws of physics for the game. 
But if other kinds of behavior can be controlled through laws and
social taboos, it seems to me that unauthorized copying can too,
provided that a large enough majority of the public feels strongly
enough that it really is wrong.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #11 of 79: The salon stopped responding (rocket) Mon 21 Aug 00 15:04
    
I see, <jrc>.  It is very difficult to stop p2p networks when there is no
one to sue.  A distributed network means you can't unplug it at the source
and you can't call up anyone to tell them about your lawsuit.

These facts prompted lots of people to say that it is IMPOSSIBLE to shut
down a true p2p network.  This is not true.  

It's difficult to run a business when you can't tell anyone who you are.  
p2p networks need money to operate.

So, for all the talk of you-can't-shut-us-down, the reality is that no
one really cares about these hackers; they are far too busy building
THEIR OWN system.  Then they sue everyone else.  

The best service will be expensive to maintain and build.  The best
service will therefore be a legimate one, with lots of loot to smooth out
the rough spots, and it will win, becuase it is going to be easier to use
than Freenet (which just doesn't work very well) and everyone is going to
know it.

Yes, geekier types will go renegade.  But I think it's safe to assume at
the point that Napster 2 is going to be run by a corporation, flush with
cash, with record labels on board. (BTW,I seriously doubt Napster 2 will
be made by Napster).

Is that reply more to your point, Jon?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #12 of 79: The salon stopped responding (rocket) Mon 21 Aug 00 15:08
    
(2 eloquent slips)
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #13 of 79: Chip Bayers (hotwired) Mon 21 Aug 00 18:20
    
<rocket> wants us to ask "How do the artists feel?" The ones who make their
living selling recorded works probably feel pretty good, since their Q1 2000
sales were up 8% over Q1 1999, all while the Napster phenomenon was taking
off.

Dismissing fans because they have "little reason to look this gift horse of
free music in the mouth" also ignores the fact that copyright law exists
_primarily_ to benefit consumers, who have been explicitly granted the right
to trade music and other intellectual property with each other for private,
non-commercial use.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #14 of 79: blather storm (lolly) Mon 21 Aug 00 18:27
    
I agree that the likely outcome will be business as usual, with the labels
co-opting the p2p distribution system somehow. Artists will continue to get
screwed.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #15 of 79: Wagner James Au (wjamesau) Mon 21 Aug 00 18:36
    

Likely the case, unfortunately.  A Net-savvy, indie musician
put it to me best:  "We were *this* close to breaking free
from the major labels, and then Napster came along and fucked
it all up for us."
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #16 of 79: doing 'n somethingness (jleft) Mon 21 Aug 00 18:46
    
I'd like to interject into this discussion the fact that we're just now
seeing the emergence of the wireless device revolution.  We are very close
to the ability to "beam" a file (.mp3, etc.) around as easily as a Palm
business card.

It will take a few years for this to reach critical mass, but given that
these devices are going to be out and about, their portability is going to
make song-swapping a natural activity.  It's not the wholesale, centralized
downloading of Napster, but it will make an impact.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #17 of 79: Scott Rosenberg (scottros) Mon 21 Aug 00 20:25
    
My observation about Napster "not feeling like theft" was offered not as a
defensive argument but as an observation both of my own experience using the
service and of how it seems to me other people use it. Whether an artist
believes that it is theft, or a court rules that it is theft, is pretty much
besides the point -- *if* the issue is, as Brian suggests in #10, just how
much of the public believes that Napster is "right" or "wrong."

When many millions of people do something that the law says is "wrong" it is
usually a sign that the law is somehow out of sync with something -- popular
behavior or mass beliefs or technological change.

Some of the important things to keep in mind here are:

(1) The fate of Napster-the-company is completely irrelevant. To whatever
extent Napster Inc. tries to "monetize" its service, the company is likely
doomed. The more the company moves into revenue streams, the more it moves
onto the turf of the record companies -- and justifies their complaint.

(2) For those who believe that peer-to-peer trading of music files is
inherently illegal and a ripoff of money that artists should be receiving,
the question is, how far are you willing to go to enforce your views?
Shutting down Napster is one thing. When it becomes a matter of hunting down
individual users of Gnutella or some successor software; when the targets of
lawsuits shift from VC-funded startup companies to individual music fans;
when a significant number of musicians have begun to shift to their own
model of online distribution -- at one of these points I think it will
become manifestly obvious that the strict-constructionist copyright position
is not about protecting artists' income but about trying desperately to save
a dying business model.

(3) What I find most interesting here, and almost never commented on, is my
own usage pattern of Napster -- which, anecdotally, seems to be shared by a
lot of others. I find Napster useless in obtaining music from artists I know
I love; I already have (and have paid for) all their official releases. What
Napster is great for is finding obscure live tracks, out-of-print B sides
and the like. If the record companies would package this stuff, engineer it
well and issue it on CD I'd pay for it -- but they're not doing so. So the
obscure tracks by They Might Be Giants, Frank Black, Eno, Elvis Costello,
whoever else I might be looking for are suddenly within my grasp. Does this
reduce anyone's income? Hard for me to see how. Incidentally, I started
using Napster late last fall, I think December, and at that time finding
tracks by any of the above artists (with the exception of TMBG) was pretty
much impossible. The growth of the Napster user base has been so
extraordinary that today there's tons of the most obscure stuff available on
it.

If it shuts down, I don't doubt that its successor technology -- whichever
turns out to be easiest and most lawsuit-proof -- will grow at twice this
speed.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #18 of 79: Rafe Colburn (rafeco) Mon 21 Aug 00 20:42
    
 One thing Adam mentioned above is that Gnutella is unready for prime time.
I'd agree with that assessment, I downloaded it the other day just to see
what was up, and I wasn't all too impressed.

 I've used Napster once or twice, and I found it much, much easier to use
than Gnutella.  I could find a song I was looking for, download the song,
and listen to it.  I was never so fortunate with Gnutella, but I didn't 
try very hard.

 My question is, how long is that going to be true?  Gnutella is open 
source software, and it already has many, many users.  There are people
working actively on improving it.  Is there any reason to believe that 
it won't be refined into something that works really, really well?  

 Besides, software like Gnutella is pretty simple.  Future products will
probably be released that are even better.  For example, AIMster is pretty
cool in that you can share only with the people on your AIM buddy 
list (I haven't tried it yet).  

 You can find a list of Gnutella clients here:

 http://gnutella.wego.com/go/wego.pages.page?groupId=116705&view=page&pageId=11
7731&folderId=117728&panelId=119597&action=view

 (what a ridiculously long URL)

 Some of them are bound to turn out to be pretty good.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #19 of 79: Wagner James Au (wjamesau) Mon 21 Aug 00 23:01
    
> how far are you willing to go to enforce your views?  Shutting
> down Napster is one thing. When it becomes a matter of hunting
> down individual users of Gnutella or some successor software;
> when the targets of lawsuits shift from VC-funded startup companies
> to individual music fans; when a significant number of musicians...

Scott, have you read a precis of the Parc Xerox study on Gnutella?
It suggests that the vast majority of Gnutella song files are made
available by a *fraction* of its users-- several hundred, by their
estimation.  Which further suggests that shutting down these
several hundred iextreme copyright violators and prosecuting them
to the full extent of the law would effectively break the back of
Gnutella.  If the study is accurate-- and it's difficult to fault
Parc Xerox's credentials-- wouldn't that give your slippery slope
a very large plateau?

> When many millions of people do something that the law says is
> "wrong" it is usually a sign that the law is somehow out of sync
> with something -- popular behavior or mass beliefs or technological
> change.

I think you're ignoring another explanation:  that the software's
ease and anonymity allows them to disregard any moral or legal
implications of using it for behavior which would otherwise appear
very much immoral and illegal.  But your larger implication here
is disconcerting: do you *really* think that the law should adjust
with the demands of popular behavior, or mass belief?  If a mass of
Los Angeles citizens believe it doesn't feel "wrong" to loot stores,
should we adjust the law to suit them?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #20 of 79: Rafe Colburn (rafeco) Tue 22 Aug 00 06:49
    
 The free rider problem is extreme on gnutella right now, but I imagine that
the great majority of Napster users are free riders as well.  Even so, the
network still seems to work.

 The number of people using Gnutella is miniscule compared to the number of
people using Napster.  When Napster is gone, and all of those users migrate
to Gnutella or some other product that follows Gnutella, is there any reason
to believe that the people who are sharing music now will stop, because they
like Gnutella less, or something?
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #21 of 79: Mike Godwin (mnemonic) Tue 22 Aug 00 09:35
    
I think Rafe is quite right about the extent of free-riderism among
Napster users. So I don't think the Xerox Parc statistics about
Gnutella, in and of themselves, give us a reading as to the effective
success of Gnutella or similar systems.

Dave, I don't think the issues raised in the Napster case were as easy
as Judge Patel makes out. And obviously the Ninth Circuit has its own
doubts, at least at this point.  One of the things I think you see
happening in Patel's courtroom is that the judge's perception of the
defendants more or less dictated how she was going to come out on the
law.  (You see something very similar happening in the New York case
about DeCSS, the program that decrypts movie DVDs.) That's not how it's
supposed to work in the courtroom -- the judge is supposed to be above
his or her likes or dislikes of the parties -- but as a practical
matter this happens all the time.

I think <mrw> is right to say that if the outcome of Napster and
similar technologies is that artists get paid less, we're all going to
be a lot poorer for it.  What's remarkable to me is how much art we get
these days given how little artists are paid under the current setup!
There are monstrous inefficiencies in most of the content industries --
from publishing to music to movies -- that digital distribution ought
to help reduce. What I'd like to see is a way for artists not merely to
get paid from digital distribution, but to get paid *more* -- to
benefit from the new efficiencies.  I want to see that benefit designed
into whatever system the music companies sign on to.

A point of comparison: It's increasingly standard in book contracts
that the author receives the same percentage of royalties from e-book
sales that he or she receives from sales of the paper version. Yet the
marginal cost of production when it comes to e-books is a much smaller
percentage of the book's price. Who reaps the benefits of the
efficiencies of digital distribution in that case? Maybe the reading
public (if the overall pricetag is lower), and certainly the publisher.
But the creator is left out in the cold. And few writers have the
bargaining clout to insist on anything different.

I've written a couple of articles recently in which I express the wish
that we could get all the parties with something at stake in this
development into a room and hash out something both workable and
equitable for everyone. You know -- have a public-policy colloquium.
The adversarial nature of the debate about Napster thus far has done no
one any good.

I'll try to post one of my upcoming columns here in a subsequent 
message.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #22 of 79: Scott Rosenberg (scottros) Tue 22 Aug 00 09:47
    
I think Rafe is right that Gnutella's ease-of-use problems are not a long-
term issue. As long as Napster is available the pressure is off making the
alternatives easy-to-use.  But Napster was developed with fairly scant
resources. If it vanishes you can bet Gnutella or whatever successor emerges
will undergo some *very* rapid development cycles toward usability.

As for the Parc study, I haven't looked at it closely, but it seems to me
the results reflect a classic early-adopter environment. If/when the
millions of Napster users migrate to gnutella or the equivalent, surely the
more widely distributed pattern of usage that characterizes Napster will
migrate as well.

James asks, "do you *really* think that the law should adjust
 with the demands of popular behavior, or mass belief?"

Simple answer: yes. We call this democracy, I think.

Looting in LA is a very poor analogy to Napster. Look, if 20 million
Americans were out there looting we'd call it a total breakdown of society.
Looting is ultimately contained and dealt with by our existing law because
the vast majority of Americans (a) believe it is morally wrong and (b) do
not engage in the practice themselves. Using Napster is not violent, it
doesn't deprive the other party to the "trade" transaction of use of the
property, and it does not create a public disturbance.

I think, James, you have very much misread the way people *feel* when they
use Napster. It's not about furtively doing something that you sense is
wrong but you go ahead and do anyway because you feel you can get away with
it. It really does feel like a big global swapmeet in which you get to trade
stuff and exchange enthusiasms with people who are passionate about what you
are passionate about.

I know that doesn't do much to console the industry people or the artists
who feel that they way of doing business that they've known all their lives
is being undermined. They're right, it is. But unless they can somehow
convince the typical Napster user that what he's doing is truly wrong -- "It
may feel good, but it's bad for you!" -- they need to come to terms with
this somehow.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #23 of 79: Mike Godwin (mnemonic) Tue 22 Aug 00 09:52
    
This is a draft of a column that will be published in American Lawyer
magazine in, I think, October.
---------
Tuned Out 
The record labels may crush Napster in court, but they remain deaf to
the desires of their most desirable customers. 
By Mike Godwin

 Is it possible that, in their efforts to suppress free music trading
on the Internet, the music companies and individuals who are suing
Napster may win every legal battle but lose the war?

Certainly from a legal standpoint the situation has never looked good
for Napster—most trial-court judges who’ve heard copyright infringement
cases against Napster or other MP3-distributing companies have come
down on the side of the music-industry plaintiffs.

Unlike my former colleague Roger Parloff (Headnotes, September) I’ve
never thought the legal arguments raised by Napster’s opponents added
up to a slam dunk. But let’s suppose, for the duration of this column
at least, that they do. What then?

The music industry, with a fistful of winning verdicts in its pocket,
will still have a handful of problems on the Net. The first is that
there’s a sizable, established market for downloadable music, thanks to
Napster. It’s unclear whether much of that market will abide by the
record labels’ ludicrous pricing policies for online sales. Sony, for
example, is charging $2.50 to download a single track. At that rate,
the Dixie Chicks’ 13-song album "Fly" would cost more than $32.

I can buy the CD itself from Amazon.com for less than half that
(shipping included). It’s hard to see how Sony’s pricing strategy makes
sense even in the traditional music market, much less in the new
market for Internet-based music distribution. When you are so far out
of step, you’ve created a perverse incentive for users to go
elsewhere—or, just as likely, to snag music for free from Napster’s
likely successors, Gnutella and Freenet.

Both of these tools allow distributed file-sharing much the same as
Napster, but without relying on centralized directory servers like
Napster’s. They create a special problem for would-be music-industry
plaintiffs: It’s not clear whom to sue, and even less clear what can be
gained in court even if you find a likely defendant. (We may take it
as a given that the archetypal slacker MP3 trader is himself
judgment-proof.) Both Gnutella and Freenet are freely distributed on
the Internet. All they require is a raft of technofriendly volunteers
with extra hard-disk space to become a fully operational alternative to
Napster.

Parloff argues in his recent column that neither of these
decentralized file-sharing systems is likely to reach Napster’s
popularity, but some of his arguments sound to me like whistling in the
dark. I’ve experimented myself with Gnutella and Freenet, and find
myself easily imagining tools like these taking the place of Napster,
especially if there’s a widespread perception among Internet
users—including the army of volunteers—that Napster was unfairly
crushed by the music industry. What’s more, I see the potential for
third-generation file-sharing tools that combine Napster’s efficiencies
with, say, the built-in anonymity features of Freenet. When it comes
to ways of improving these distributed file-sharing systems, the only
limit is the inventiveness of programmers. I wouldn’t bet against them.

In short, I think it’s likely that even if the music companies win in
the courts, they stand a pretty good risk of losing where it counts,
both in their pocketbooks and in the hearts and minds of music buyers.
But perhaps we should look beyond the question of picking the winning
side in the ongoing struggle between the content industries and the
Internet’s cheerful file sharers. Instead, shouldn’t we try to find
common ground between music makers and music lovers?

Let’s start by looking at a parable about how music lovers really
think (I call it a "parable" although it actually happened).

A couple of months ago I asked folks in an advertising forum on the
WELL, a conferencing system based in the San Francisco Bay Area, if any
of them knew the source of the haunting music in the background of the
television ad for the "vapor edition" of the Volkswagen Beetle.
Someone helpfully pointed out that the song appears on the album "Blue
Wonder Power Milk" by the band Hooverphonic, but couldn’t remember its
name. That was enough of a clue. I went to Napster,  downloaded a bunch
of songs from that album, and recognized "A Renaissance Affair." I
liked that single a lot, but not the rest of the album.
(Unsurprisingly, Volkswagen used the best song for its ad.)

Now, it’s already hard to characterize this example as a lost sale. I
wouldn’t have bought the album on the basis of one song. (I no longer
buy records on teenage impulse.)

But get this: I told a friend about the song and the album, and she
went out and bought it via Amazon. Her purchase would not have occurred
but for my visit to Napster. So, Napster was what made that particular
sale possible. Now, I’m not saying that all instances of copying via
Napster put money in the pockets of the artists. But some of them do.
In the absence of sound independent statistical research, anyone who
claims that Napster creates net lost sales for artists is just voicing
a religious conviction about music copying.

More importantly, the implication of this parable is that a basic
assumption of record labels—that we won’t buy the cow if we can get the
milk for free—may be simply wrong. My friend the record buyer could
have asked me for my copies of  "A Renaissance Affair" and the other
songs on the album. She could have gone to Napster and found them
herself. What she did instead was spend money for music—contradicting
the paradigm of music consumers that the record companies seem to have
embraced, and affirming instead the notion that, for some of us at
least, good music is worth paying for, even when we can get it for
free.

I think my friend is typical. Music lovers don’t begrudge seeing that
music makers get paid—they embrace it. It’s these consumers that ought
to be informing the public-policy debate about sharing music on the
Internet.

Some music-company leaders have stuck their necks out the possibility
for a rapprochement between Napster-like companies and the music
industry. "I think we can all work in harmony," says Val Azzoli,
co-chairman and co-CEO of the Atlantic Group. "I would even pay Napster
to be a distributor. But my beef is not getting paid." Azzoli is onto
something—the best outcome of all the current strife would be for the
record labels to find a way to work with the technologists.

But not everyone is as flexible or as farsighted as Azzoli. The
consensus in the music industry is that the best and only strategy is
to sue choice targets and scare everyone else into compliance with the
music industry’s particular and restrictive view of copyright.
Entertainment lawyer Helene Freeman of Dorsey & Whitney has classified
this attitude as "an intractable problem." Says Freeman: ‘’I believe
the record industry is ideologically committed to litigation."

What they ought to be committed to instead is collective problem
solving. It’s time that the music companies, consumers, and
technologists sit down and hammer these issues out—to talk to each
other outside of a courtroom. And the time for such a forum is
now—before the music companies discover that winning every legal battle
has only hastened both the loss of control of their music and the loss
of the hearts and minds of music lovers.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #24 of 79: The music's played by the (madman) Tue 22 Aug 00 11:12
    

I would just like to say that the consitution is a great example of how the
laws in this country do _not_ necessarily reflect the mass opinion of the
people.
After all, the majority of this country still believes that gays are leading
immoral lifestyles. Let's lock 'em all up.
In short, I agree with Au here. There are a lot of laws that come into
existance against the majority view. Some good- anti-discrimination laws,
for instance. Some bad- look how many laws are bought outright. Mickey's
copyright. The DMCA.
  
inkwell.vue.83 : Intellectual Property in the digital age: Music
permalink #25 of 79: Benjamin Brewer (bbrewer) Tue 22 Aug 00 13:06
    
Just my opinion on things in regard to the gnutella/napster
freeloading. Many of the people sharing files are the ones with a
decent internet connection - they allow others to use the extra speed
that they are not using at the time.

My prediction: As broadband use hightens, content will be more evenly
distributed throughout these 'rogue' networks.
  

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