National Day of Sharing May Take Your Stuff
California Copyright Conference
COLUMN: If you want to hear new music in the future, good luck. Musicians and songwriters are being pushed out of the marketplace. Take a look at this simple but unassailable logic: “When you turn on your tap, water comes out and you’re billed for it. When you turn on your computer, music comes out and you’re not billed for it. That has to change or the music industry is essentially the same as the Titanic.”
The speaker is Richard Gibbs, composer of music and soundtracks for motion pictures (“Queen of the Damned,” “28 Days,” “Say Anything…”) and television (“Battlestar Galactica,” “The Simpsons”).
Gibbs appeared on a lively panel at the California Copyright Conference (CCC) monthly meeting in Los Angeles, and while the main topic was about placing music in film and TV, the event often took a couple of sharp turns into another issue, namely methods for resurrecting what some see as an industry in jeopardy.
The most entertaining idea was Gibbs’ suggestion of a “Day of Sharing – where we ALL share the fruits of each others’ labors. Every musician and every human who supports this cause will, on this day, ‘share’ whatever they like. Order your favorite meal from your local bistro, eat it, and walk out. Test drive a car and simply keep driving. Fill your pockets with candy from the 7-11 . . .
“Don’t forget to thank the proprietors for sharing, though, and let them know that you like the Snickers bar and that next time you might just pay for it out of kindness and generosity. And just in case you are beginning to feel a little guilty,” Gibbs adds, “warm the cockles of your heart by thinking of all of those wonderful pieces of music that you helped to create that are residing in the restaurant owner’s iPod and his kids’ iPods, the gas station owner’s laptop – think of all that beautiful sharing YOU have already done.”
While Gibbs’ suggestion is satirical, legal experts agree that he makes a valid point. “Copyright protection was considered so important, the founding fathers wrote it into the Constitution,” notes Cheryl Hodgson, president of the CCC. “The lobbying by special interests in technology over the last 20 years has finally taken its toll. The slow erosion of rights of all authors has finally reached a critical juncture. The shift in consciousness to one of ‘entitlement’ to free music began with illegal downloads but is now seen in other aspects of our society,” Hodgson states.
Criminal Acts in Your Home
Estimates of music piracy vary depending on who’s doing the measuring, but most calculations I’ve seen put the percentage of illegally downloaded music at well above 80%. A recent NPR story stated that 95% of all digitally downloaded music is pirated. Gibbs feels it is closer to 97%. Whatever the figure, piracy means the slow death of music distribution and the drying up of commerce for songwriters and musicians. And the criminals are everywhere from Silicon Valley to inside your house.
“Music and entertainment are not going away,” Gibbs admits, pointing out that “the average kid has twenty times the number of songs on his iPod than that same kid would have had in his CD collection ten years ago. They just aren’t paying for it.”
The blame for this is often laid on the doorstep of the major record labels. True, they have displayed many faults over the years. Greed, for example. As in selling a $16 compact disc containing two good songs, which they did repeatedly except when they were selling an $18 compact disc containing one good song.
The major labels were also quite fond of finding, shaping, controlling, and foisting onto the public ever younger and ever less talented people who pretended to be musicians despite their inability to write, compose, sing or play an instrument.
Legal Crime
As onerous as these practices are, the majors are not the culprits for the crisis in the music industry. It’s the manufacturers of hardware and software who have successfully lobbied Congress to prevent songwriters and composers from getting paid. Well, they don’t call it that, but that’s the result of policies that do not compel Internet service providers (ISPs) to build-in fees for music the same way restaurants, stores, and bars do.
For those of you who are not in the music business, let me explain that last point. When you go into a public establishment that uses music, one of their costs of doing business is paying for the performance of music. Performing rights organizations (PROs) such as BMI, ASCAP and SESAC collect money for the public performances of their members’ music on network television, cable and satellite TV broadcasts, use in nightclubs, stores, restaurants and other public performances. But this does not happen with music and electronic devices. And corporations are just fine with this, a situation that is leading to the destruction of a creator’s copyright.
“Imagine what kind of world we would live in if the basic human right to benefit from one’s own labor were suddenly taken away,” writes Tess Taylor, president of the National Association of Record Industry Professionals (NARIP). “Contemplate for a moment how any of us would react if our individual ingenuity, productivity, perseverance, and investment; our labor, ideas, property and other contributions were, to our exclusion, made instantly and freely available to others.” But that’s exactly what the consumer electronics industry is doing, in conjunction with the telecommunications firms (telcos) which include cellular phone companies and cell phone manufacturers.
Taylor suggests considering “free” music as analogous to a trip to an amusement park: “A popular destination point like Disneyland would not have the right to charge admission. Does that mean you can go to Disneyland for free? Not exactly,” Taylor notes. “To get there, you’ll have take a private road that the telcos and consumer electronics industries control – and at the toll gate you’ll be forced to pay whatever they demand.”
Another example might be to think of songwriters as the bakers of bread and the big corporations as the owners of delivery trucks. Compensation would be made for the delivery but not for anything else. Or, as Taylor puts it, “the baker of the bread is paid nothing but the delivery boy charges what he likes and keeps all the money.”
Wait, I hear you say, it’s just a few songwriters, right? Wrong. Once you give up the idea of copyright protection for creators, you’re going off the edge of an icy road and spiraling downward to something darker. As Taylor points out, under this approach “…novelists, investigative reporters, journalists, documentary and theatrical filmmakers, screenwriters, photographers and cinematographers, recording artists, songwriters, producers, poets and painters, doctors and scientists, cancer researchers, bio-geneticists, climatologists, architects and engineers, designers, and others – those who make among the greatest contributions to society – are expressly deprived of the right to own the results and proceeds of their creative work.” Because anything that can be digitized is subject to being “shared.”
So how do we change this condition that is weakening copyright laws, promoting unfair business practices and taking food out of the mouths of creators and their families?
Calling for a Cure
“Monetizing the Internet is not all that difficult to do from a technical and logistical standpoint,” Gibbs says. “The problem is that we need union leaders with the political backbone and savvy to force legislation through that will protect and enhance all of the entertainment industry – indeed, all intellectual property rights.”
One solution proposed by Gibbs and others would be for all ISPs to charge a mandatory monthly fee for unlimited downloads. From a music publishing standpoint, I don’t care if the ISPs collect the money or if the PROs are allowed to do it, but something needs to be done to end the nearly ubiquitous theft of music.
Consider the root cause of the trouble. Why is the flow of appropriated music allowed to continue unchecked? Gibbs points out that “There are very intelligent people fighting for the other side, pushing for free dissemination of information of all sorts on the Web. Their argument seems to be that the Internet and free downloads are suddenly some kind of God-given right.”
The telcos and electronics companies are multi-billion dollar industries (which dwarf the record and music publishing industries) and have highly paid lobbyists arguing their position in Washington. Many believe they provide the funding for firms that regularly address the public, such as the Electronic Frontier Foundation, to shape opinion in such a way that wealthy companies get more wealth while songwriters and composers get nothing.
Two things are needed: legislation to protect intellectual property; and public understanding of the dilemma. Legislation will only occur if members of Congress suddenly develop guts, or if they are lobbied by people other than the hardware and software industries.
Follow the Dollars
Take a look at who’s making money from the use of other people’s creations. “The ISPs, for starters, are cleaning up while charging monthly fees for access to services that allow people to pirate music at will,” Gibbs notes. “According to one survey I read there are approximately 91.7 million monthly subscribers in the U.S. alone paying monthly fees to their ISPs. And that survey did not even include universities and government institutions. The ISPs are, in turn, leasing their bandwidth from even larger and more profitable companies.” Those firms are very profitable in large part by using music and other valuable content they have not licensed. As one independent artist put is, “This leaves U.S. songwriters and music publishers between a rock-and-roll and a hard-wired place.”
Gibbs notes that “Our fight is not with the public – it is with the corporations that are making money hand over fist by the sweat off our furrowed brows and it is with the government that allows it to happen.” Gibbs states that the music industry “should be leading the fight, by every means necessary, to establish a new view of file-sharing – a misnomer if ever there was one (how about ‘file-stealing’ instead?).”
You Can be Part of the Solution
Thievery. Larceny. Robbery. Corporations shifting money from creators into their own pockets. Lobbying organizations rigging laws against the little guy. This can continue or you can help stop it. Yes, you. You can help bring about positive change with just a few clicks on your computer keyboard. The same computer that may be busy streaming and storing illegally “shared” music. The same computer that may soon be busy streaming and storing illegally “shared” motion pictures.
You can let your Congressperson know that major corporations should not be allowed to take money from those who own copyrighted works. Yes, I know, I know, the name of your Congressperson is right on the tip of your tongue. Here’s where to get the name:
http://capwiz.com/illustratorspartnership/directory/congdir.tt
*You can get in touch with Cheryl Hodgson at www.hodgson-law.com
*The many activities of the National Association of Record Industry Professionals are found at www.narip.com
*To learn more about the CCC, visit them online at www.theccc.org
*You can contribute to the Richard Gibbs defense fund at www.richardgibbsmusic.com
Feb 26, 2009 @ 1:23 PM PST
An interesting read, although alleging that the EFF is fighting so that “wealthy companies get more wealth while songwriters and composers get nothing” seems a bit extreme (even if this is what “some people” think, and not the author’s opinion). Coincidentally, I looked up the EFF’s position on file sharing, and it appears that, at least on paper, they are for voluntary collective licensing.
Also, the “unassailable logic” of the faucet analogy doesn’t seem so flawless, as I see it. A water faucet is a special purpose machine designed for one thing: delivering water from a facility that distributes water. Extending this to computers, we would assume a computer is a glorified radio that delivers music from a facility that distributes music, which is a gross misunderstanding of both computers and the internet.
But if we’re going to take this analogy, suppose that there are two water utilities servicing the same area and Utility A needs to use some of Utility B’s pipes to deliver water to their customers. Who will pay whom, and for what? My best guess is that A will pay B for the use of the pipes, not that B will pay A for the privilege of delivering water! So returning to computers, ISPs provide the pipes, but are not the distribution facility. This makes holding the corporations responsible for lost revenue a fairly odd position to hold.
The real problem is with the users, no matter what some in the industry will say to make their arguments more palatable to the public. Users create and use services that distribute infringing music files; the ISPs are just the pipes. So any solution needs to address the cause and get payment from the people or services distributing files. If ISPs are willing to pass a fee through to their customers, then that might be the solution; but the solution has to affect the users. Pretending that the corporations are the source of the problem and that the government is letting them “get away with it” is naive.
Feb 27, 2009 @ 7:23 AM PST
Both the article and the comment here are interesting. I don’t think the EFF is actually against music per se, as John R above said they are for voluntary collective licensing.
I disagree with this opinion piece because I don’t think it’s technologically feasible to control sharing, so political solutions to reduce sharing just aren’t viable.
Maybe the upshot of all this is that some new laws should be passed to send royalties to artists through some ISP access tax. It wouldn’t really be a big deal, as we have all sorts of regulatory taxes stacked on to utilities and services of every other kind.
I wouldn’t support anything like this currently. I’d rather just wait around until the industry dies, and then take action, because if politicians implement licensing or taxation schemes today it would just put all the money in the record companies pockets. These companies seem partly like an artifact of how music used to be done, so if they’re middlemen who are useless I’d rather whatever necessary economic restructuring be done first, and implement some new scheme after, when it will do music good rather than helping out some corrupt, lazy, backwards people.
Mar 5, 2009 @ 8:24 PM PST
I have received reactions galore to the “Day of Sharing” article, most sent to my personal in-box. Here are three where people have been kind enough to give permission to quote them.
* * *
Very interesting and thought provoking… though, in some of the examples given, there are indeed payments being made to labels, publishers, PROs, etc, based on subscription formulas. The unfortunate aspect is that very little of that money (if any) finds its way to artists, especially if they’re not well-known. That’s another “rip-off” issue regarding the way the business has evolved. Indeed, I’ve interviewed executives who said, “Most artists don’t deserve to share in that income.” This goes way deeper than those that share illegally downloaded music. It involves the way business is done.
– Bernard Baur, Contributing Editor, Music Connection Magazine
* * *
I have been yelling about this topic from the standpoint of musicians, writers and composers for so damn long – and I have been accused of everything from being an RIAA plant to a ambulance chasing attorney. Since the Texas Instruments engineers came out with the very first inexpensive MP3 chip set, I have been screaming about this topic, and it has been falling on deaf ears!
YES – I was one of the original instigators in the MP3 lawsuits because it didn’t offer any kind of protections to ANYONE! YES – I was one of the SDMI folks! YES – I was overjoyed when Apple put protections on iTunes and
Microsoft on WMS. Guess what – POOF – It’s gone – NEVER to be implemented again unless of course GOD HIMSELF (HERSELF) comes down and makes it so!
BUT NOW you are telling me that musicians, composers are finally waking up to this issue! (There’s a WHOLE other market out there that better wake up too – PHOTOGRAPHERS – but THAT is another story.)
The problem is known, the problem has been hashed to death, the problem CAN BE SOLVED – CAN BE RESOLVED – the 9 bazillion business models have been squished, squashed and hacked, backed, talked, balked, baked and raked – and IT CAN BE DONE! IF AND ONLY IF – folks cared about the business aspects of their careers instead of just the “glory” aspects.
Musicians need to learn sooner rather than later that business is business – and if they want to play – somebody – SOMEBODY has to pay!
– Mike D’Amore
* * *
That was a great, and I mean great, article.
Unfortunately, the situation is also incredibly depressing. Lately, I have been starting to wonder if the last 10 years of my life dedicated to the music industry wasn’t just a total waste of money and time. After all, I don’t get compensated for my airplay, my download income has gone down (since nobody wants to pay even 99 cents for a song) and the licensing arena has also suffered, due to supply and demand. In fact, in the licensing area, the big companies are taking advantage of the dog-eat-dog competition by lowering the license fees so low no one can ever even recoup their production costs. Hey, Telepictures, a Warner Brothers company, now offers only $500 per track in an industry where the floor used to be around $1500-2500 for a track license.
To add to this lousy situation, even if “universal music access fees” or somesuch were charged by ISP’s for music delivery (which I am in favor of), the reality is that the independent artists would probably not see a dime. In fact, only the majors would likely benefit, that is, until it was mandated that all airplay had to be monitored and tracked. The lack of monitoring is the reason I have substantial airplay yet haven’t seen a dime from it. Again, I see this as something which is going to have to be legislated to happen.
Sometimes I think, too bad there’s not a powerful songwriters’ union, so we could strike and withhold our songs from all airplay and all licensing agreements for a specified period. A world without song for one day! It’s a pipe dream concept but a hell of concept, don’t you think???? Ya want our music, then frickin’ pay for it!!!!
– Giannetta Marconi
Mar 7, 2009 @ 6:15 AM PST
Thank you for an interesting and thought-provoking read.
That said, the Bread truck delivery metaphor really falls flat. If I don’t even eat bread, I’m expected to pay the driver a “bakers fee” that gets passed onto the baker? That is what Gibbs seems to be proposing. There are truly mind-numbingly massive amounts of IP on the internet, and music is but a slice of it. Should every maker of IP be paid a royalty collected by means of a “mandatory flat fee” becuase someone might download or read their IP on the internet? Shall we force online newspaper subscrions as well? Blogs? Dictionarys and medical databases? Porn sites and craigslist?
There is a serious problem with IP on the internet, but mandatory fees paid to ISPs for music isn’t the answer; not unless we all want the internet to suddenly cost $1000/month since the ISP’s have to pay fees to all the potential creators of IP that one of their customers might download. (if I write a blog, do I get a slice, too??)
Amazon is takign some interesting tacks here with how the Kindle operates (and now Kindle content on the iPhone). It’s DRM to the max, but (so far) there hasn’t been a major outcry against it. We’ll see how they fare (and I’m sure they’ve studied music downloading plenty in looking at all aspects of their system); perhaps there arent’ enough users to get upset at the DRM aspects of it.
Smoking used to be cool, and many many people did it. Movie stars were always smoking, as were successfull businesspeople. Somewhere along the line, after many (tens of) years of education and $$’s, it became uncool, and smoking rates dropped decidely. I don’t see much of a solution to illegal filesharing except as a social issue similar to smoking– technology magic (DRM), or heavy handed business ‘solutions’ (lawsuits or mandatoryISP fees) will never solve the issue as long as people think its fine/cool to share music.
Mar 15, 2009 @ 2:59 AM PDT
Hey Scott!
Thanks for the props and the link to my defense fund – and mostly thanks for fighting the good fight! Send folks to the website –
Sign the petition, write on the forum.
Let’s fix this mess, ya?
Richard Gibbs
Mar 15, 2009 @ 9:18 PM PDT
It is only fair that musicians (and others) get to make money from their art/craft without having to somehow win the favor of a major record company, and also without having to play performances 5 days a week for life. This unscrupulous file-stealing will cease, and should.
Mar 18, 2009 @ 9:57 PM PDT
I kind of feel like I’m missing out of this “turning music on like water and not paying
for it” because I usually do pay a lot for my iTunes downloads.
Mar 19, 2009 @ 2:05 AM PDT
Why can’t we as composers, authors, arrangers, and educators get together and unionize. If we get enough artists and unions to fight together to keep their music from being pirated we could put music back on the stage and in the concert hall and in the media with the proper royalties. The problem is that we allow our music to be marketed in a way that it is easy to steal. We need to come up with a way that takes the music off the internet. I copyright or register my titles with ASCAP. I record music on CD’s. I think musicians should keep searching for a way to find CD’s that are not recordable. Musicians should try to lobby for laws that prohibit the digital and electronic media to copy their materials. We need to get these devices out of the market place and replace them with the recordings that we spend the time and sweat to produce. Unfortunately this won’t be done because none of our unions or leaders have the guts to take appropriate action.
Bryan-Chauncey Mays
Mar 19, 2009 @ 12:33 PM PDT
Well said! Let’s fight the good fight. Let’s be consistent: either everyone is entitled to be properly paid for their legitimate work, or no one does. Rule of law, or anarchy.