The introduction of filesharing programs into the world is a simple change.
Changes in an environment require other organisms to adapt to this new environment.
Changes in technology require older companies to adapt to this new technology.
The introduction of cars put a dent into buggy sales.
Buggy producers adapted (or went out of business)
The same thing will happen with filesharing.
Give up the old argument that filesharing is stealing from the artists. First of all the sale of the CD makes profit for the RIAA, not the artist. And to those who argue that the sale of CDs make an artist better known thus raising awareness for the group therefore bringing in money from tours, that’s the old way. Yes, it used to be the world worked, but the introduction of filesharing changed the music world.
Now the RIAA will either have to roll over and die or adapt.
And I for one won’t shed a tear at it’s demise if it does die.
I personally don’t believe we should ban people form talking about filesharing. It’s like telling the automakers at the beginning of the 20th century that they can’t come together and talk about new models… Ya know, that might hurt the buggy producers.
To answer the question about how it is different: one is new, and threatens the recording companies. Also, just because something is legal does not mean it is right or fair. No one but an idiot would claim that I don’t have the right to play a song for my friend. But, that’s just what file-sharing is. Also, what is fair use? If I whistle a copyrighted song without buying it, is that a copywright violation? How about writing up the notes as I hear them?
No it isn’t. Come on, let’s be fair here and admit what’s going on.
File sharing is not like ‘playing a song for your friend’. It is like burning a copy of the song and GIVING it to your friend. It’s clearly not covered by ‘fair use’ as the law is applied today. Fair use means being able to maximize your own, personal enjoyment of copywritten material THAT YOU OWN. It also includes things like using exerpts from copywritten materials for editorial purposes.
As soon as you copy and re-distribute copywritten material in whole, you are breaking the law.
As for whistling a song, that’s fair use. But if you charge money to have people come hear you whistle someone else’s song, you are violating the law. Feel free to write up the notes for your personal enjoyment, but if you distribute the transcription, you’re violating the law.
Really, the concept isn’t that hard to understand, if you think about it.
Aha. Well, if I whistle a song, and a friend hears it and whistles it, that’s what’s going on. Remember the quality loss the audiophiles have commented on? Is a whistle fair use, but a 8kb/s MP3 not? Why? And most file-sharers don’t charge money.
I just gotta say bravo about Sam Stone’s post that begin with this line
Very well said!
Now, in his later posts, he has things to say that I want to respond to
I have a quibble, but I think it’s an important one. File sharing is NOT exactly like you making a copy and giving it to your friend. Rather it’s like you lending your friend a CD and THEY make a copy of it.
It illegality isn’t in the sharing, it’s in what your friend does with your files. They copyright violation (if any) is on HIS end of the transaction, not yours. If in fact, if he only listens to files streamed from your server, it isn’t even a violation, so long as no money changes hands, (not even indirectly).
This is why libraries are legal, but copying media that you borrow from them may be a violation, (depending on the purpose of the copy, it may not be a violation either).
Not true. Whether or not it’s a violation depends on the purpose. The real test as far as the law is concerned is whether or not you are interfering with the revenue stream of the copyright holder. And even then, there are some exceptions spelled out in the law where you can legally interfere. (The scholarly exception of fair use, for instance).
Copyright law is all about preserving the copyright holder’s right to profit from an idea or expression. As such it is only indirectly related to the right to copy per-se. In the bad old days of physical copyies, it could reasonably be assumed that only people with commercial intent would make copyies, because copying itself cost money. This is no longer true, and thus, the notion that the mere act of making a copy is an infringement is no longer true. Now the test is profit motive, rather than copying itself.
Once again, not true. It’s perfectly legal to perform a copyrighted work so long as you don’t charge for the performance That includes indirect charges as well, so commmercial entities are effectively prohibited from all performance. But private, non-profit ones AREN’T prohibited. Once again, it’s not performance per-se that is prohibited, but rather the unauthorized profiting from performance.
This is why you can sing happy birththday (a copyrighted song), in public to as large a crowd as you like, but the employees of “TGI Fridays” have to have their own lame-ass non-infringing birthday song to use instead.
Are you sure about that? Because there are an awful lot of web sites that have been shut down because they’ve printed song lyrics or tablature to copywritten songs. Most of these are ‘hobby’ sites that don’t make any money.
But I’m not an expert in the law, so I’ll defer to those who are.
All I know is, file sharing networks are a very important thing for the musical culture. They should NOT be shut down. If they also enable people to steal music, well them’s the breaks. That same argument was made decades ago when the record companies tried to stop libraries from offer music in their collection. And I’m sure there are a lot of people who go to the library, borrow CD’s, and burn them. Whatever the solution is, it can NOT include closing libraries and shutting down file sharing networks. Their good vastly outweighs the bad.
For those who are interested, I just wrote a related article about this on my web site today. Here it is: Breaking the Music Industry’s Heart
Fan sites are in a grey area of the law. I don’t believe that there is a definitive ruling yet that posting something to a personal web site is actually infringement, but it’s really close to the edge. It most likely depends on how complete the representation is.
Even so, personal web sites are very similar to print-based publications, while P2P sites range from similar to publications, to not at all like publication. So fan web sites are much closer to infringing than most P2P sites would be. I expect to see some major test cases in the next decade that will firm up the rules regarding copyright and various internet technologies. At the moment it’s more wild west, and the major copyright holders are claiming as much ground as they possibly can with the sure knowledge that virtually no-one but them has enough lawers to do anything other than roll over.
That’s the real reason that the fan sites back down when they get cease-and-desist letters. Even if the letters are based on entirely bogus legal reasoning, they don’t have the money necessary to call the content holder’s bluff. Big copyright holders win through intimidation any many places where they may not have won if the courts were deciding.
I’ve always thought that shutting down the tablature sites was ridiculous, both from a legal standpoint AND from a self-interested one. Why wouldn’t artists want people to play their songs at home on their guitars? Why wouldn’t they want people to play them around campfires? It’s great advertising, and in no way is going to cut into their sales. (“Hey, I don’t have to buy “The Wall” now, because my buddy Bob can play ‘Comfortably Numb’ on his guitar!”)
I suspect you’re right - a lot of this is just record companies trying to stake out as much turf as they can with threats, rather than a real expression of what the law is.
This is an excellent anecdote and a perspective that rarely gets any publicity. I have also purchased numerous copies of the same copyrighted material (record, tape, cd). I file-share and I’m proud of it. I purchase dozens of cd’s every year and my collection now numbers well over 500.
Rob should have made his own MP3s if he was able. I have the Hot Rods & Custom Classics box set but there are some songs I don’t particularly care for so I made MP3s out of the tracks that I like the best. Those tracks are for my own use so I should be fine from a legal standpoint.
I’ll tell you this: If AOL concentrated as much on securing Gnutella, made by AOL-owned Nullsoft, as the basis of their music distribution service, as much as they concentrate their attention on the lawsuit against Microsoft, then we would be talking about AOL/TW at triple digits share price instead of the single digits they are flirting with
Hey Sam, I don’t have anything to say about file trading that you haven’t already said with more eloquence than I can summon but I thought I’d throw my support behind you anyways.
First of all, I greatly enjoyed your blog entry, Breaking the Music Industry’s Heart, and my reaction to Wilco’s story was identical to yours. I, too, downloaded Yankee Hotel Foxtrot from their website after hearing alot of web buzz and was stunned that tone-deaf record execs had actually blacklisted such an exquisite pop album. I listened to it obsessively and, when the CD was officially released, I ran out to buy a copy even though I already knew it by heart. I was pleased that it debuted so high in the charts. Definitely one of the best CDs of the millenium (although I might give a slight edge to the Flaming Lips’ Yoshimi Battles The Pink Robots).
A similar example might be Eminem’s latest CD, The Eminem Show. It had been widely traded for months before its official release and it has been near the top of the Billboard charts for 14 weeks now. I think these examples put the lie to the idea that file trading hurts record sales.
On the other hand, Moby is on record as blaming the disappointing sales of 18 on file trading. In doing so, however, he conveniently ignores the fact the 18 was just a boring retread of Play which, coincidently, was also widely downloaded yet still sold shitloads of copies.
File trading can be a great promotional tool while, at the same time, allowing consumers to make better informed decisions. This is probably what scares the crap out of record companies, though. That they’ll no longer be able to shovel crap at us and get away with it. Thankfully, it seems, there will always be a market for quality.
What’s your point? I don’t see a reference to rape in either of those definitions. Please feel free to point it out.
Urinating on a statue in a public park is grossly offensive to good taste, but it’s not rape. Even though it could be considered an outrage, and you can find a book that says “outrage = rape”, the language is used differently in the law than in everyday conversation. Rape is a specific crime with a specific legal definition. Not everything that’s an outrage is going to get you convicted of rape, no matter what a thesaurus says.
Back to the point - when someone infringes copyright, the crime he’s committed is copyright infringement, not theft. He hasn’t actually stolen anything. Similarly, even though giving pornography to a minor could be considered “stealing his innocence”, someone who does that still isn’t a thief, because he hasn’t actually stolen anything.
Thesauruses are wonderful tools for writers, but they don’t have the power to change one crime into another. If you’re going to accuse file sharers of stealing, at least have the sense not to make yourself a liar by adding “according to the law.”
Perhaps a slight hijack to describe what a Thesaurus is would be worthwhile here. A Thesaurus is not a synonym dictionary or even a regular dictionary. It does not pair words of equal meaning. It only suggests similar, related words that might be appropriate in some cases. It is up to the Thesaurus user to differentiate and understand the gross or subtle nuances.
Oh, I do. But not all acts of extreme violence are rapes.
Although urinating on a statue may be an outrage, and outrage is similar to rape according to a thesaurus, it would be incorrect to say “That man urinated on the statue, so he’s a rapist.” The word rapist implies that he has committed the crime of rape, which he hasn’t.
It would be even more incorrect to say “That man urinated on the statue, so he’s a rapist according to the law.” Before, you were just making an implication, leaving your readers to decide whether you were referring to the crime of rape or just using an informal definition of rapist; but if you add “according to the law”, your statement becomes provably false.
If you say “downloading music is stealing, according to the law”, your statement is false, just as if you say “urinating on a statue is rape, according to the law.”
If you leave it at “downloading music is stealing”, then even though you can claim you’re just playing fast and loose with the language, you should still expect the same funny looks as if you’d said “urinating on a statue is rape.”
If you don’t want to use the legal definition, don’t invoke the law.
Also, as one who has daily contact with patent & trademark attorneys, I strenusously object to the notion that one has to physically remove an object in order to be “stealing”.