Illustration: "St. Nicholas" (1873)
Why does the argument the record companies give seem like it has it’s merits about protecting it’s music from being “stolen” and “pirated” on the internet, but the argument for being allowed to share music you own also seem logical? Where is the disconnect? I think the disconnect is in the misunderstanding of what the music industry is actually selling - goods or a service.
Historically, the music industry has been known to sell goods AND services, but for the sake of this article we are focusing on the selling of the music itself, which has been sold as a good - an item. In the past, there was no confusion that when we bought music we were holding a thing and that thing was ours, our property.
It was first sold as a record. Once you bought that record, you owned it, it was your property. You could play it, give it to a friend, throw it at the head of an attacking zombie, or even sell it if you pleased and there was no problem with that. That is how a commodity like that is dealt with. Then came the cassette (I’m aware of 8 tracks, let it go), which you could give to a friend, sell, or even copy onto mix tapes for your crush in junior high, and that was ok. That is what you can do with your property. Then it was in the form of a CD. You could give a CD to a friend, sell it, download it to your computer, burn another CD-mix for your sweetheart in college, or even light it on fire on the street because the artist had a differing opinion than you on the president. That is what you can do with your property - all legal, unless you catch the neighbors lawn on fire, but you get the idea. These are all legal means of reselling a used item protected by the Copyright’s Act first sale doctrine decided on by the US Supreme Court in 1908, but now we have a file. Essentially, we are down to the information itself, so what is the problem?
This file we buy is still sold, marketed, and thought of as a good. It is something we purchase and own, but because of the ease at which we are able to share and copy this information, the music industry doesn’t want us doing that with our property. However, if this file we are buying is in fact, a good, then they should have no say whatsoever in the life of that thing after it has been purchased, much like the last forms of the goods they were selling. In this case, we should be able to do with our property what ever we see fit. They like to throw around the phrase copyright infringement, but that doesn’t actually apply to the buying and selling of used goods. It would only apply if someone was claiming it was music written, produced, or sung by them. No one on these file-share websites are claiming such things, as far as I have seen. If you go on the site, they will plainly say, this is the new Jay-Z album etc...; not, this is MY new album. THAT would be copyright infringement, but to share something that is yours should be perfectly legal. If the music industry were right about their idea of what copyright infringement is then every library in the world should be shut down immediately because they are violating the copyrights of those authors and publishers, but that would be crazy - just as crazy as claiming you still have a right to the life of a good you sold to a customer. What if you bought a hammer, but the makers of the hammer told you what nails you could use and which wood you had to use to use it, and if you broke those rules, you would be arrested? You wouldn't buy the hammer because that is crazy.
Then how do they make their case? Why is it compelling to hear their argument at all? The reason the music industry’s argument isn’t thought of as crazy is because it is based on the idea that they are offering a service that people are now getting for free. So which is it? Is the file a good or a service? If it is a service, I can understand the claim to it after the point of sale, copying hurts our business of distribution. If someone is copying your service without paying you your dues it makes sense to have an issue, but the music industry doesn’t market or sell it that way. This is, I think, the reason so many people disagree with them.
They have successfully argued that the file is not the same when filing against a company trying to resell used digital tracks called ReDigi. It seems the music industry wants it both ways - they want to sell you something that you own, but still tell you what you can do with it after the sale to protect their future sales. Problem is, if your business is cutting into the rights of citizens (your very customers) - your profits, I’m sorry to say, are unimportant. You made a bad business decision, or need to adapt to the new paradigm. Our government has fallen for the argument (or been paid to believe it) and is in the process of trying to ruin the freedom of the internet for the sake of protecting an industry’s profits. “It’s for our economy,” they might say. Protecting the rights of the slave-owning cotton plantations would have been the same decision, but that is not what was right (an extreme example, morally, but relevant on economics). When their business was clearly in violation of the rights of people, the business needed to change, but now the government thinks we should change to protect a business?
Why don’t they just call it a service, wouldn’t that solve the problem? According to the reports (linked to below), Sweden had their ‘piracy’ drop after Spotify launched there, but only in the music sector (leading to the idea that people will not ‘pirate’ music when given a service that is better). I’m sure many in the record industry are investing in the new model of providing an unlimited music listening service without the purchase options of files, but why are they still selling files and punishing those that would share them? They want their cake and eat it too.
So the industry really needs to think long and hard - are they selling a good or a service? If they keep dragging their feet in the water in the hopes of making more money now, they might end up catching those feet on the water and drowning their own business.
What about the Artists?
The only good news of all this is that the music industry of the past is dying. The internet is still taking a large bite out of their previous control and that is reassuring. People like Macklamore and Ryan Lewis are showing what the future might look like without the major music labels dictating to us what music is available for our listening pleasure. They have become as famous as they are without the typical record deal with a “major label” and that is a good thing. Imagine if musicians themselves were in control of their production? No record label telling them ‘no’ and having them break apart and quit playing music when there were plenty of fans who wanted to listen to them. No more making a small fraction of the money for your music because the record execs need private jets. No more millions of dollars to mundane acts just because the record company is “pushing them” when no one wants to listen. There are millions of great musicians out there and we can use the internet to find and listen to them and then pay them directly to go to their show, all without the industry. This can happen even with the new draconian laws they are trying to put in place and have already put in place hindering the internet's unique abilities.
I’ve heard the argument that they spend a lot of money producing, marketing, and distributing artists, shouldn’t they make money for that work? Depends on if the market pays for it. We shouldn’t be obligated to pay for things just because the business paid for it. Sorry Jack, but the market doesn’t automatically eat your costs just because you paid them. If I charged $5 for my lemonade at my lemonade stand when I was a kid because I bought a brand new blender, does the customer have to pay it? No, why would they? Besides, now that they are selling a file, there is no more packaging costs, distributing costs, and advertising on the internet can be much, much cheaper than TV or print if you are smart and creative.
What if, instead of paying for all those billboards, commercials, and print ads you spent only the money of producing the album and THAT was the cost of marketing? Free albums to market for concerts. That would make them irrelevant but would still give the money to the artist, their ‘go to’ argument - "what about the artists?"
What about the millions of artists who can’t compete with your distribution and/or get rejected by you? What about those artists? Claiming anything related to artists not making music because of the internet ‘piracy’ is ridiculous. If people are only playing music these days for money, that is probably why we have people like Jay-Z and, call me crazy, maybe we would have better music if the industry didn’t expect so much in sales. Personally, most of my favorite artists of the last 20 years have been on small labels not pushing for huge sales and then dropping the acts if they don’t make it. They are allowed to continue to make better and better music. The “one-hit wonder” is a major record label business practice by-product. Perhaps the music industry can learn from the craft beer movement - increasingly, people no longer need the hype of TV commercials and large billboards to know what they want to buy.
The Latest Reports
According to the studies quoted in the TechDirt article linked to in the button below, changing their business model is helping the industry with sales, but not slowing down the use of torrent sites or other file-sharing sites. In other words, they are learning. Napster slapped them into the present and they are struggling to catch up. It’s weird how capitalists who want the market to decide are shocked when the market decides they are out of date. However, file-sharing is not going anywhere and they need to adapt; and so far, it’s working for them. However, those piracy laws are failing miserably. This is prohibition all over again. Let the market decide, shall we? Just give up and let us drink and be merry!
This is just another story of an industry that is at the crossroads. Some might be too myopic to see that one path, the one they have been trudging for decades, leads off a cliff. Those that are smart have been pushed by the file-sharing sites they hate so much to adapt or die. The internet is the future and I just hope these ridiculous laws (SOPA, PIPA etc...) don’t ruin the internet before the death of the old music industry, like the desperate hand of a zombie tumbling off a cliff just getting a handful of a new, youthful leg and pulling it down with them.