Copywrong

Anyway…

Wouldn’t it be nice if everything were free? Wouldn’t it be great if we could walk onto a car lot, pick a car, get in it and drive it away? Wouldn’t it be fabulous to be driving that new car by a house and simply pull into the driveway and that house was now yours? Wouldn’t life be the ultimate convenience if we never had to pay for anything again?

And who gives a shit if someone already lives in that house? You could share it with them, because it isn’t really theirs, is it? And if the builders came back, and said by rights, it was theirs, you could answer, “No it isn’t. It doesn’t belong to anyone—but if it did, it’s mine, because I’m sitting here, and you aren’t.”

The builders might then get understandably upset. “But,” they would say, “we made it. You can have it, but you have to give us something for our labor, our materials, our skill.”

“No,” you’d respond, “because you already have a house. You’re already set. Why should I have to give you anything more? I could build my own house if I wanted to. It might not be as nice, or as big, or as well made, but I could do it. Your skills are good, and I appreciate them, but I don’t owe you anything because of them. And the materials—like everything else—they’re free. Anyone can use them. And you already gave your labor in the building of the house. The house is here. I don’t have to give you anything.”

Now, imagine that you’re the housebuilder, and all your houses are being appreciated, true enough. They’re all full of happy people. But you aren’t getting anything from any of those people. Obviously they appreciate your work, but where’s your reward? Why do you keep building? Why should you?

The Road Less Travelled

Yes, that’s my ham-fisted moral tale about creation and reward. Yes, it’s brought on by the unsurprising but unsettling public reaction to the Napster ruling, now suspended pending court review.

Capsule History: Napster, assuming you’ve been sleeping under a rock for the past year or so, is a file-sharing application that links up your computer to anyone else’s computer via a Napster server if both client computers have the Napster application loaded and running. The Napster server acts as a switching station and virtual network repository, informing you what files are available on every other connected computer. Napster sets up a semi-protected directory on your computer to hold the files you want to make available to others, and it uses this directory to hold the downloaded files you’ve pulled off other people’s computers.

If you haven’t seen a problem with this scenario so far, then let me add the sticky wicket. The files in question are MP3’s, or digital audio files. And in most cases, these files have been copied off of CDs in people’s collections, and then passed around and around and around in this digital form, each copy as good as the first. The artists of most of these tracks have not given their consent or permission, either implicit or implied, to anyone sharing the files.

This is, quite obviously, a violation of U.S. (and usually international) copyright law. Which states, in essence, that when you buy a copy of anything, you own one copy of that thing. It does not now nor has it ever given you a right to make more copies of it. You own a copy, not a copyright. Simple?

But for years, you’ve been able to make copies and the copyright owners mostly look the other way. You might own a copy of an album and want to listen to it in your car, so you tape it. You might want to share your musical tastes with others, so you make mix tapes and hand them out. All this analog copying yielded audio that was usually inferior to the original, but it sounded okay. I mean, radio sounds like crap next to owning the CD, usually, but most people could care less.

But things started changing with the advent of digital recording means. CDs are now over ten years old. The digital realm produces an exact copy of any original, because it’s all just bits and bytes. The analog realm depended too closely on the mechanics—what needle was finding the vinyl record’s groove, what ferric oxide was used in the tape, how was the attenuation in the cables linking the turntable to the amp to the tape deck? What was being lost with each successive copy? Were the highs a little less high, the lows less low?

The digital realm, increasingly, is removing all that unpredictable behavior. You can now make a copy of a CD that is an exact copy of the original, in sound anyway. So mix tapes become mix CDs. No big deal, right?

But that’s a one-to-one transaction. Now, hook in Napster to that equation. You still have digital copies that, in most cases, are exact dupes of the original (the MP3 standard allows you to shift down the audio rate to produce smaller files, if you want, or you can make an exact copy using the original audio properties, which is usually the case) but now you’re tying in millions (in Napster’s case, 20+ millions if their download rate is a true indication of the user community size) of people “sharing” what they “own.”

If you were the copyright holder for that material, wouldn’t that make you a little worried?

The Big Picture

Look at this from a historical perspective. If you allow this to happen now, when admittedly the vast majority of the global population is not on the Web and do not own computers, what happens when they get on the Web and do have access to even the lowest-price computers which will, given a CD-ROM drive and the right software for ripping tracks from a CD and turning them into MP3 files—software which is easily available free of charge? If you do nothing to try to stem this tide of free music, aren’t you giving tacit approval to this egregious violation of your rights, your copyrights?

Now, the people who have been using Napster have a couple of arguments that this copyright infringement is, in fact, beneficial to the copyright holders. (I should point out that in many cases, the copyright is held not by the artists, but by the record companies which is, in itself, another point that the copyright, um, well, let’s call them thieves—a term used to describe someone taking something belonging to someone else without their permission—use to excuse their actions, but I’ll get to that momentarily.) First, they say that access to free tracks via Napster in fact elicits them to purchase more music, not less. Because, they say, they are unhappy with the state of music buying. They say that when they buy an album without being able to hear everything first, they get a lot of filler they don’t want. Now, if they can download all the tracks to get a taste of what else is on an album, they know whether they want to spend money on it.

To me, this sounds insane. If you’ve downloaded all the tracks, why would you need to buy the album in the first place? But, putting that aside, they also note that they can get access to many more artists and music than they can using any other means, such as the tightly-controlled playlists of radio, or the horridly icky MTV collection of mostly artless crap churned out by corporate gloss machines. It’s hard to argue with that, because they can generally find anything they want using Napster—assuming that what they want is the popular, mostly artless crap being played on radio and MTV. From what I’ve observed, the people looking for new artists and music are in a tiny minority. What people want are the same tunes they hear on the tightly-controlled radio playlists. Britney, Eminem, and, apparently, Metallica.

Only they don’t want Metallica anymore, because Metallica sued Napster and told them to kick off anyone using the service that was pirating Metallica tunes. This is, in essence, a pretty ballsy move. Consider that the people Metallica want removed are the people who want to listen to Metallica. They are trying to kick off their own fans, but these particular fans they don’t seem to consider to be fans because they don’t seem to want to have to pay for Metallica music.

That’s a pretty mess, isn’t it? If you’re a Metallica fan, a band which sort of defines a lifestyle of sorts, then you probably want to share your kick-ass love of that kick-ass band and their kick-ass music with other kick-ass Metallica fans. But Metallica is telling you, “No, don’t do that. We hate you for that. You’re stealing from us.” The inference being that Metallica isn’t in it for the kick-ass grooves and kick-ass ass kicking, but for the, horrors, money!

Monster Vision

But Metallica was merely trying to protect the thing they own and the thing they created, that being Metallica music. But what of the artists who don’t own their own copyrights? What about the huge, rich, conglomerate record companies who are, apparently, ripping off their own rosters of musicians every chance they get? At least, this is what we are now being fed. That by ripping off the labels, not the artists, we’re sending a message that we are unwilling to be ripped off by these labels for selling us what, according to the Top 10 lists and concert attendance figures, we want to hear. This benefits the artists because now, um, now that we’re unwilling to buy their music, uh, that now, see, they’ll… They’ll… The artists, whose music we no longer want to buy, will get more money.

Or something.

Because the artists will now be able to use the new distribution channels, which will work like Napster, where everything is free, to break out of the shackles of the big labels and be able to… uh… give their own stuff away.

Because, see, the artists don’t make money from their music. They make it touring in support of their albums. The concerts, see, is where the big money is. So if artists gave away their product, we’d all go see them in concert, especially if they suck on stage but make great albums. All they have to do is spend their lives in vans touring the country in support of the music no one is listening to because we’ve never heard of them because they no longer have a record company doing all that useless promotion. Or so, apparently, goes that argument.

Because in all these scenarios, I have yet to see any plan that yields the artist some compensation for their work.

And this is where I get a bit peeved.

Portrait of the Artist as Pissed Off.

The inference I take from this loud shout going on all over the place about how unfair it is that Napster was ordered to stop aiding in the outright copyright infringement happening more and more is that the people who’ve been able to download music recordings which they did not purchase have a right to do so. They have a right to keep getting something they were stealing in the first place. That the corporations or artists trying to regain control of their own creative product have no right to do that.

Why I get upset is that, in my very short time being someone who’s able to make something that some people seem to like, I’ve had some of my own creative product “borrowed” by others without my knowledge or permission. There are, of course, lots of differences between what I produce, how I produce and distribute it, and what happens to it. The bottom line, though, and the thing which connects me to these musical artists is that I don’t have very much that is mine, that is all mine, that I made, that I created, that I can truly claim ownership of. And if I stretch this argument concerning copyright all the way to me, it also means that because I’m publishing this stuff—these words and these images and these ideas—on the Web which allows you to download them to your own computer, indeed demands that you do in order for your browser to cache this page, because you get them, you can now do whatever you want to with them.

And I must beg to differ.

No, I get no direct monetary compensation for any of this. Yes, I am for all intents and purposes giving it away. I am probably about as far away from Metallica as someone can get, but copyright is supposed to protect us both. So when I read people complaining that Metallica has no right to demand that anyone who’s taking their creative product and giving it away to stop doing that, that Metallica has no right to protect their own creative product in any way they see fit.

I see all sorts of excuses for this behavior. Because Metallica is already successful (read: rich) they should be happy to give away what they make. And if Metallica chose to do so, that’s fine. But that’s not their choice. When you own your own creative property, no matter what it is, no matter who you are, no matter how rich you are, no matter what, you should be able to protect it and do with it what you want.

If that doesn’t include giving it away, you have to protect yourself and your work by stopping those who want to give it away. But some people want to tell me that I don’t have that right anymore. I’m also creating digital media. I’m also making it available on the Web. Does that mean that if someone else takes it and “shares” it with others without my permission, I should just grin and bear it?

Well, fuck that.

What Now?

Yes, you’ve always been able to share the music you love with others. But now what? What happens now that you can plug into a network of millions of users and share that music with all of them. This isn’t the same as making a mix tape for one, or two, or twenty, or a hundred of your closest friends. This is opening up all the CDs in the world to the world. It isn’t the same thing at all.

The genie is truly out of the bottle. With other free file-sharing applications readily available and virtual networks going to a distributed model (no Napster server acting as the traffic cop, in other words) how can anyone control it? Suing Napster may seem like an act of desperation, which it probably is, but what’s the alternative? If you as a record label or artist sit back and do nothing, you’re giving tacit approval to losing your own copyrights. You’re giving them away. Again, if that’s what you want to do, there are ways to do it. Open up your own Web site and put your catalog online. Offer space to other artists in the same boat. Start a network to distribute all your stuff to get in the hands of your fans, let them share it with others and be happy with whatever monetary compensation comes your way as a result.

Maybe by suing, you force a solution. Or a compromise. “No,” you state emphatically, “I don’t want my material given away and you cannot aid in that process.” Unless the entity—or some interested party—comes up with an alternate solution, you shut down that process at the source. And you move to the next source, and sue them. You have a Gnutella server on your domain? You’re sued. You host a site with a Gnutella server? You’re sued, too. This is how the process has to work until someone comes up with a liveable solution.

And I don’t have one to offer. If you restart Napster and charge an access fee, and you distribute part of that fee to copyright holders based on download numbers, is that fair? Or are you more willing to pay for access to Sting and Limp Bizkit than you are to Joe Blow and the Background Singers? Does Sting get a larger chunk? What if Sting doesn’t want to participate? How do you, pardon the pun, police that? Are you going to monitor what all 20 million users keep on their own hard drives? Are you, as a subscriber, going to keep track of which artists you can share and which ones you can’t?

Are you willing to pay for access to such a service on a per-download basis? But you’re also providing content yourself, aren’t you? Shouldn’t you be compensated as a distributor? After all, these artists are now getting a cut of the dough, Napster is getting a cut… what are you getting? Yes, you get access to a lot of music, but how much of it do you actually care about? What if your network connection is always busy because others are downloading what’s on your computer, but then they simply move those files to a non-connected directory so they can enjoy the tunes but don’t lose their own bandwidth in the process?

And so on. And so forth.

As for me, I made my decision a while ago. I do not use Napster. I no longer share MP3s over the Web. When I used to think, “but how many people are hurt by this?” I had to think, “how can I do this—violate the copyrights of others—and expect anyone to honor mine?

July 30, 2000

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