One quibble with an otherwise excellent article:

I wonder what Rosenberg would say if I copied and pasted his blog entry on my Web site without asking him or without attributing it to him. Maybe I think he's mean or otherwise don't find him palatable. Hey, I know, I'll steal his work! That'll show him.

Whoa, nice sweeping, detailed article on the subject. Of course everybody who filetrades music knows that it is wrong.

I find it somewhat interesting that the people who the RIAA have fingered to date have not been casual filetraders, they were serious, hardcore filetraders. Not saying that a little bit isn't just as illegal, of course, but a little bit apparently isn't showing up as prominently on the RIAA's radars.

I wonder how many netizens who were regular filetraders have cut way back because of all this lawsuit business. I would think quite a few (anybody seen an authoritative study of any kind?), which means the end does sort of justify the means, despite those who personally oppose the RIAA's legal right to enforcing of the copyrights.

Thanks for the comments!

The idea that digital files on the internet are physical property is a Big Lie. Data is not property. Property law doesn't apply.

True. And I guess that's probably why the Supreme Court ruled that file sharing isn't theft, but copyright infringement. But it's still intellectual property -- ideas and their expression -- and it can still be protected from what I personally consider "theft".

Copyright holders need to change their business, just as they did in the early days of radio (the recording companies tried to make radio broadcasts of music illegal).

That's a valid point, but some people are using it as a justification for illegal file sharing. Not the same thing.

The music industry tried to kill blank cassette tapes, too, way back when. Their first instinct seems to be to kill a good idea, rather than leverage it.

Not saying that a little bit isn't just as illegal, of course, but a little bit apparently isn't showing up as prominently on the RIAA's radars.

A little bit just isn't worth tracking down, probably. They're probably not worried about people who share with a handful of friends, just people who share with thousands of others they don't know. It's the sheer volume that's the problem in this case. At least it seems to be.

which means the end does sort of justify the means, despite those who personally oppose the RIAA's legal right to enforcing of the copyrights.

If nothing else, they're making it hard for people to claim ignorance on the issue. Now if you do it, you do know that copyright protections can be enforced. And that goes for music or any other electronic files shared without permission.

Great comments! Thanks!

bhw, excellent job, though I can't agree with your conclusions. There isn't any question that file sharing without permission violates copyright law as it now stands. That isn't really the issue. The issues are: is the law right (no, in my opinion)? Is using the bludgeon of lawsuits the best way to handle the problem (absolutely not)? It definitely isn't only about money: it's also about convenience, control, flexibility, the fact that until iTunes you couldn't get individual songs either a) at all, or b) for anything close to a reasonable price ($.99 is still way too high, but that's another story), availability, etc. Money is also a factor, but not close to the only factor. I have to move on, but thee are about 200 stories on this site from the last year that deal with the subject. It's good to have the other side presented well, though.

The issues are: is the law right (no, in my opinion)? Is using the bludgeon of lawsuits the best way to handle the problem (absolutely not)? It definitely isn't only about money: it's also about convenience, control, flexibility, the fact that until iTunes you couldn't get individual songs either a) at all, or b) for anything close to a reasonable price ($.99 is still way too high, but that's another story), availability, etc.

And I guess that's my point: it *is* about the copyright. I don't believe that people who share upwards of 1,000 files do it as an act of civil disobedience.

If you don't like the deal the record companies offer, don't buy their music. I don't really feel badly for myself or other consumers who have a couple of hundred CDs in our racks at home. Stealing doesn't fix anything, and I think all those other "reasons" for file swapping are just red herrings.

People think that CDs cost too much, so they steal the songs instead? Is that what you do if you think a car costs too much? Isn't it inconvenient to buy a car? Don't manufacturers have a monopoly? Or how about the cost of going to Disney World? Should you have a friend sneak you in and encourage others to do the same, even kids?

Are we teaching young people that it's okay to take something if you don't like the company that made it or if you think it costs too much and that it should be cheaper?

See what I mean? Just because you don't like the legal deal doesn't mean you are justified in breaking the law. Boycott it. Fight it in the courts. But don't steal.

Are we teaching young people that it's okay to take something if you don't like the company that made it or if you think it costs too much and that it should be cheaper?

until iTunes you couldn't get individual songs either a) at all, or b) for anything close to a reasonable price ($.99 is still way too high, but that's another story), availability, etc.
That is, perhaps you couldn't inside North America. In Europe, with iTunes, still you can't. Maybe, just maybe, at the beginning of next year, if Apple succeeds in pushing that through.
And in France, "culture" is a commodity on which we pay a whopping 19.6 percent VAT.
I agree that these are not good excuses for breaking laws which I also consider to be bad ones. And indeed, it is to see the other side of the story so clearly presented.
But personally, I'd rather boycott Micro$oft, on the whole, than the record companies and, good heavens, the radio...!
The real trouble in this saga, as is increasingly the case these days, is that the technology leaves the legislators with a never-ending race to catch up.

This just occurred to me, but ask yourself, what is DNA?

It is copying. The reason we exist is because we have builtin mechanisms which produce accurrate copies every second.

If you don't have accurate copies which can be passed down, your work won't exist.

Boycotting the music industry is hard as hell though. Even when you buy used CDs, they get $$ somehow. I am not for illegal "file sharring" and whatnot, but I think the RIAA has a lot to answer for(IE-why most artists are struggling to even survive on tour, the only time living off their music is even capable for most of them, while their fat cats sit up in their ritzy offices driving benzes)

But personally, I'd rather boycott Micro$oft, on the whole, than the record companies and, good heavens, the radio...!

Who wouldn't? ;-)

I'm just tired of hearing people justify their choice to illegally download copyrighted material. If you want to do it, then at least admit you're doing it just because you can and it's free, not because you're justified by some higher moral ground.

If you are connected to the net, you are copying. It's a binary choice. You are connected to the network and data gets copied, or you are living in a shack in Montana.

You can't have it both ways.

Copying means your creations live, Preventing copying means they die.

I honestly don't understand this point. The record companies didn't put the songs up for download, users did. The record companies own the rights to the songs, whether you like it or not. Users who download make a conscious choice to download -- the files don't magically appear on their PCs unless they install file sharing software, search for the files, select them, and then click download. It's not a passive activity. The binary choice is: do I violate a copyright or don't I?

Copying without my permission means my creations have been taken and used without my permssion. Preventing copying hasn't hurt the electronic publishing, software, or music industries yet.

I don't really understand your point.

This just occurred to me, but ask yourself, what is DNA?

It is copying. The reason we exist is because we have builtin mechanisms which produce accurrate copies every second.

If you don't have accurate copies which can be passed down, your work won't exist.

Dude, can you send me some of whatever it is you've been smoking today? ;-)

A song's accurate copy for posterity exists just fine on a copyrighted and legally purchased CD.

Illegal copying doesn't increase the survival rate of a song. Where is Darwin when we need him?

I don't really understand your point.

It comes down to real world policing. You can say "I'm King Of The World", but unless you can get everybody to agree, you just look like an asshole.

The same thing with networks, you are either in the net or outside of it. You can't have it both ways.

Either you set up a business model which utilizes networks, or you peddle your wares to ... well I guess nobody.

This is a great article, bhw, but it doesn't really address something I see as really important: that mp3s do indeed actually spur music sales. I can't tell you how many times I've bought something because I was able to download and analyze something I was curious about. I have around 1500 CDs - suffice it to say that it's happened quite a few times. I've downloaded things simply to check it out - never having heard the artist before, and not being willing to take a chance on something I know absolutely nothing about. Thirty-second clips on Amazon are fine for some things, but others, like ambient, electronic, or even jazz, this is far too fleeting a glipse of what the music has to offer. The only option is to buy the CD with a risk (and it's been a big risk - some things always turn out to be unlistenable to me) or go the "illegal" route and download it. Now, I'm fully aware that I'm probably one of "the few" who would actually seek out the real deal after downloading, but I'm not the only one. For me, any suppression of mp3s results in a decline in the music I buy. It probably won't result in a huge dent to the industry, but it is a significant issue that needs to be addressed. Not to mention what happens to those of us who keep mp3s we downloaded of albums we eventually bought - according to the RIAA, this is illegal because it's not a copy of the unit *I* bought, and, as evidenced by one person in just this situation a couple weeks back, is grounds for litigation. Is that fair? Of course not. But it's how the RIAA works.

The problem here is not strictly the downloaders and sharers. It's indicative of a bigger issue - there's a reason people don't respect music as a legitimate entity that has rights. This is what the RIAA and artists need to be looking at. But they won't, because it points the finger of blame back on them. If you give the people a deal on something they want, they'll want the real thing. If you make available music people will see as actually valuable and not just the latest soundtrack to a commercial, people may want to put their money into it again. As it is, you can hear more "hit songs" in a two-minute commercial break on Friends than anywhere else. Let's focus on that and apply the question "why doen't music mean anything to people anymore?" What answers do *you* come up with?

A song's accurate copy for posterity exists just fine on a copyrighted and legally purchased CD.

A CD is not a copyright, a vinyl LP is not a copyright, a piece of sheet music is not a copyright.

You're right. A CD is a licensed reproduction of a copyrighted work. When you purchase a CD, you purchase a license for personal use, not for making another version of it for distribution. So the copyright is a legal status of protection on the work, including how it gets reproduced and distributed, including digitally.

Copyright is not an object, it is not property, and it is broken.

It may or may not be broken, but the courts have upheld it. Copyright is legal protection for the creator or the person the created willed, gave, or sold the rights to. It isn't property, but it is legal protection for intellectual property. A song is not physical, but intellectual property, and the copyright holder has the right to keep it "out of print" if that's what he or she desires.

the copyright has nothing to do with the physical representation of the copyright.

Not true. The copyright protects the way the intellectual property reproduced and distributed, that is, the physical manifestations of the intellectual property, whether words, sounds, images, etc., and whether on paper or in a digital file.

If you do not have permission from the copyright owner to download a digital file containing licensed material for which you did not pay, then you can't. Or you can, but you risk the consequences.

File swapping is the distribution of unlicensed copies of copyrighted works. Just the same as if I photocopied a book and gave it away.

actuallly payment has nothing to do with permission.

Copyright has no built-in requirement of payment. Copyright is about about scoping out a realm from the public domain for expoitation. It is not a liscense, it is a safe habour for creators to exploit their works before they revert to the public domain.

Copyright has no built-in requirement of payment.

True. But this whole RIAA situation is about money, so when I use the example of downloading a file without paying, I think people know what I'm referring to. My whole article was about the RIAA case.

And let's face it, I don't think we'd have copyright laws if, say, only artistic expression was involved and not money. Do you?

Copyright is about about scoping out a realm from the public domain for expoitation. It is not a liscense, it is a safe habour for creators to exploit their works before they revert to the public domain.

I never said a copyright was a license. I said a CD that contained copyrighted material was a licensed reproduction of the work. That's true.

And I don't agree with your intepretation of a copyright as a safe harbor for "exploitation", if you're using that word pejoratively. People who create things should have the exclusive right to use them, sell them, give them away, wipe their ass with them, whatever, until they give that right to someone else, or until the right runs out.

People are allowed to make a living off of the things they create. They're also allowed to give their stuff away for free. But they still hold the copyright.

Let's focus on that and apply the question "why doen't music mean anything to people anymore?" What answers do *you* come up with?

Well, it's just like all entertainment these days: it's aimed at the lowest common denominator. And it's apparently working. I just listened to a great Al Jarreau CD [which I paid for!] in the car today. I'm sure he doesn't make half the money in the music biz as Justin Timberlake does, and yet the guy is out-of-control GOOD.

If you ask me, all the best TV programs are either on cable stations or non-major-network channels. The networks peddle crap, just like most of the newer music out there.

This is a great article, bhw, but it doesn't really address something I see as really important: that mp3s do indeed actually spur music sales.

First, thanks. Second, I don't why the industry is cutting off its nose despite it's face on this issue. Why better business models aren't in place, I don't know. The industry is *very* conservative and tends to try to prevent innovation.

Not to mention what happens to those of us who keep mp3s we downloaded of albums we eventually bought - according to the RIAA, this is illegal because it's not a copy of the unit *I* bought, and, as evidenced by one person in just this situation a couple weeks back, is grounds for litigation.

This makes no sense to me, either. I don't know why, if you paid for a CD, you can't download another person's file onto your PC for listening while you work, or whatever. Why it has to be a copy of the exact licensed recording you bought, I don't know. Maybe the RIAA will lighten up on this issue after it puts a dent in file sharing. Or maybe it won't.

I'm not defending the RIAA's business models or saying that they're behaving in a smart way. I'm just saying that, legally, they're right and all the justifications in the world won't change that.

I see you're all carrying just fine without me here.

Second, I don't why the industry is cutting off its nose despite it's face on this issue. Why better business models aren't in place, I don't know. The industry is *very* conservative and tends to try to prevent innovation.

a while back i spoke to a person working for a major label. the issue was about obtaining cds for review. for certain releases they have a closed list of reviewers....and then (and this more than amazed me) they cut a cd per reviewer: each copy has customized watermarking data that identifies the reviewer the disc was sent to. they think that if ripped versions of any of the tunes show up on the internet they can track it back to the reviewer.

it gets better: they even do this for jazz recordings...which are a tiny, tiny drop in the bucket of the total market.

this person thought it was beyond stupid, and in fact joked that a good idea would be to provide a cd-r along with each new release to encourage spreading the material.

i've said it before and i'll say it again: further proof that there are no music lovers running the labels anymore.

this is trite, but the expression is "cutting off his nose to spite his face"

not despite

Ack! Idiomatic illiteracy!

Okay, I fixed it in the blog entry, but there's nothing I can do about the comments.

My very good friend the Wildcat and I are currently separated by many hundreds of miles.
The other night on the 'phone, she shared something she really likes with me. I had no idea that Carla Bruni was anything other than a supermodel, when in fact she's also quite a poet and a musician who recorded what is already a best-selling album.
With Acquisition, I swiftly "stole" a couple of tracks to taste more. Those 30-second bites at Amazon and elsewhere had told me nothing.
And now I'll be buying the CD.
My daughter sometimes downloads heavy metal which almost drives me up the wall if I have to hear it too many times in a row. She knows perfectly well that this is illegal, and I tease her about being a thief and pirate.
But it's just that, teasing. I'm not going to ban her from doing what I do myself, especially when as often as not, she'll also take her hard-earned pocket money to the store to get the CDs.
I didn't make this point in my previous comment (where, BTW, I left out the word "good" re. the article; sorry!). I know it's easily shot down. The Kid and I are still thieves.
But until the legislation changes to meet the new circumstances brought on the industry by technology, my conscience is totally untroubled.
I'm glad Tom Johnson did make the point. Eloquently.
My previous mention of France's high tax rates on CDs -- but also on virgin disks -- was not gratuitous. For the moment, we the public are led to believe that at least part of the money they rake in this way goes to artists and the recording industry, via one channel or another.
Whether this is true, I've not investigated thoroughly.
But at best, even if it is, it's no more than an interim solution. Sticking plaster on a wound which calls for a far more imaginative kind of surgery.

a few comments:

If, like me, you have uploaded or downloaded a song from the Internet, you have infringed on the copyright.

Dissagree. Often bands and even labels have mp3s to download off their site. When it's the copyright owner distributing the song online from their site, then it's not a problem.

While I agree that filesharing is WRONG and STEALING and personally never do it, I also feel that the RIAA is sticking it's head up it's ass. C'mon! Suing a 12 year old girl? fuck!

EXCELLENT article, well worded and well
thought out. No corporate stooge could've
written it better!

However, the pooh-butts at the RIAA won't
work with their own ARTISTS, they rob and
rape them from jump. In order to get a song or album published, they fellate the big pink bitches that control the KEYS.
They will NOT, therefore, work with the
rest of us, they wants their GOLD.

FUCK 'em.

I have, from my earliest memories of
adolescence, been OVER-charged for every
buy of any music, well beyond what any
song is worth. A single song, even a GOOD
one, isn't worth the $20 for the crappy
album they attached it to, and as a kid,
it cost and cost and cost just to have a
TINY collection of reasonably good music
with which to piss off the old folk.

The RIAA could make deals with a good P2P
service, and charge a REASONABLE amount
to FILESHARE, it's happening, and it WILL
continue, but they don't WANT to be
reasonable, they wants their GOLD.

Fine, I says. Their lawsuits cost THEM,
and bring little back in. Last count was
some 271 suits? JUST using Kazaa, that
represents some .001% of current users,
and they've been at it for AWHILE!

There's also WinMX, Bearshare, Morpheous,
and a few DOZEN more, each with their own
MILLIONS of users. They tie up courts
with these crappy little lawsuits, and
they just haven't reached the "FUCK YOU"
crowd yet.

I was amazed to find these arrogant
bitches attempting an "Amnesty Program",
sign up, turn yourself in, and promise
not to file-share any longer, as well as
erasing any and all music files, and we
WON'T sue YOU.

I am HAPPY not to have seen the results
of THAT particular piece of stupidity.
Surely, NO one is that damn ignorant?

What really bugs me about industry lobbying groups like the RIAA is how they are seeking to criminalize P2P and online music, while they engage in price fixing, payola and theft of copyrights from creators.

The biggest elephant in the room is "work for hire" clauses.

Everybody knows Jack "The King" Kirby created Captain America, The Fantastic Four, The Hulk, and Steve Ditko created Spiderman, right?

Nope, their paycheques had a "work for hire" clause on the back, so if they endorsed them, they signed over the rights to their creations.

The same thing with record contracts.

The Big Lie the majors are spreading about copyright is that the public domain doesn't exist. Public domain is the rule, not the exception.

Copyright has become perverted and is under such stress, it is at the breaking point.

Additionally, since the regulations for music are crafted with the manufacture of physical products like piano rolls, 78 rpm shellac and sheet music, they are getting into the realm of the seriously disturbed.

But when you have a government which sends a man to jail for selling bongs, I don't think a change is gonna come.

I would be interested to hear how you solve the mess of sampling and mashups. One of the reasons current hip-hop is so lame is because the problem of clearing samples.

BTW, the reason I mentioned DNA is because in the USA you can patent gene sequences.

If a company can claim copyright to somebody's DNA, then the system is seriously broken.

And I resent being labeled a criminal because I have no legal options. Why can't I download a song and pay a nominal publishing fee? After all, it's _my_ bandwidth and disc space I'm paying for (there's no free lunch even in cyberspace).

But when I go to my account at emusic.com (which I pay in Yankee dollars, thank you very much) and which Universal Music owns a controlling share, and they've made a selection of out of print titles available - this is what I get told: US Residents only.

This is a prime example of why the recording business are failures at business, and now the boom-times are over, instead of trying to do business, they are just failing around like the lawyers and accounts which run the biz.

Can I suggest you go to Creative Commons for a plan to make things which work.

The record companies engage in their own copyright theft. Under Fair Use, an author should be able to quote a few lines of lyrics for free. There's even a 1930s NY Federal District court case that supports this interpretation of fair use (music publisher sues New Yorker magazine for publishing a short story in which a character hears lyrics on a radio; New Yorker wins).

HOWEVER, look in any book in which an author quotes even a FEW lines of lyrics, and there's a copyright notice saying the lyric is "Used by permission." That's because the recording companies/music publishers will sue the author & book publisher unless they cough up a license fee, and it's cheaper to pay than fight a Fair Use claim in court.

Then there's the copyright extension. Under the 1909 Copyright Act, copyright used to be for 28 years, renewable for another 28. In 1978 it was extended to "life of Author plus 50 years, or 75 years after publication." It was recently extended again to "life of Author plus 70 years, or 95 (99?) years after publication."

The Constitution says Copyrights exists to promote that public benefit (the public domain), and FOR THAT REASON, AUTHORS shall enjoy exclusive copyrights "for a limited time." But now that "limited time" has been extended so that authors' distant heirs may also enjoy it, rather than the public. That was never the Constitutional intent.

File-sharing IS theft -- so the MPAA and RIAA should return what they've stolen through lawsuits and legislation (let's re-expand Fair Use and shorten the copyright term) and then they'll have a moral claim to end file-sharing.

Anybody catch Friday's Music Wars on TechTV about all this RIAA stuff? I have the TiVO setup to record the repeat airing

"The record companies engage in their own copyright theft."

Agreed

"File-sharing IS theft"

No, file-sharing is just a tool, method of distibution which can be/is used legally and illegally

Well spam is good for one thing. It brought me to this thread.

Amazing that the discussion hasn't progressed much beyond this.

Excellent post bhw and I agree. The consumers will always out-number the creators and so the "wronged" will always be a geater number.