I think you may have just shown me why I have had trouble arguing this point with people before. I have been using ‘stealing’ like this:
If I download an mp3 of a Metallica song from some guy on Napster, I am stealing from Metallica, not the guy on the internet. The object that has been stolen is not the guy’s song. When Metallica sold a copy of their CD to the internet guy, they still retained the right to offer to sell me a copy of their music at whetever price they feel like; this right is what I have ‘stolen’.
Now I don’t necessarily buy this argument myself :), but this is what I have been taking ‘stealing’ to mean.
I guess I think of stealing as in stealing money from the pocket of the person that owns the right to the material that you are illegally copying or distributing when you either download a MP3 or offer one for download without the consent of the owner.
But by that definition, it’s ok as long as you only download MP3’s of songs you would never be willing to buy. And that is clearly nonsense.
The ‘lost revenue’ theory only makes sense if you don’t pay attention to actual facts of the napster case. This is one of those ideas that is intuitively ‘correct’ even though the world doesn’t really work this way. When downloads of copyrighted music via napster was at it’s height, CD sales were up. Now that napster has been virtually shut down, CD sales are down (although, this last fact is probably not meaningful because the whole economy is in the tank right now.)
I know from my own perspective, when I find a an artist that I’m willing to listen to, I usually try and buy every CD they’ve ever done. The only artists that would ‘lose’ revenue from me downloading MP3’s would be those who make song’s I’m only willing to listen to once.
I submit that you would have first have to demonstrate that revenue was actually lost by MP3 downloading before you could call it stealing.
I’m sorry but I know many folks with gigabytes of music they downloaded for free from Napster. They did not buy any CD’s because of what they downloaded. Why bother? It was all there for the taking. It’s great that you bought CD’s due to your illegal downloading, but clearly that is not usually the case. To think that no revenue was lost is living in a fantasy world.
No, you are the one living in the fantasy world. From your own link:
It is anything but clear that napster hurts music sales overall, though it’s easy to find anecdotal evidence of individual abuse. The fact remains that aggregate sales of CD’s was up when napster was going strong, and dropped after it was shut down.
It’s as reasonable to consider napster as free advertising and helping to create a fan community as it is a vehicle for mass theft.
Your link only shows that online purchases of music declined with napster useage, but it also admits that offline sales are the bulk of all sales. To show lost revenue, it isn’t enough to show that gigabytes of music has been downloaded, but also that this is music that they would have purchased if it were not for napster. As I already pointed out, there are other ways that people can get recordings of popular music without paying for it. Recording off of the radio, for instance.
If I illegally download a Britney Spears MP3, I’m not “taking something that doesn’t belong to me.” I’m creating a copy of something that already exists and is being (illegally) offered for copying–a file on my Napster buddy’s computer. Britney still has her master tapes, whoever ripped the track still has the CD, my friend still has the file… nothing has been taken. The only difference between the “before” and “after” scenarios is that I have one more file on my hard disk.
In fact, the balance in Britney’s bank account is exactly the same as before I copied the file, as is the balance in her record company’s account. Neither Britney nor her record company had to expend any effort or resources in order for me to copy the file (besides producing the original CD), so we are even. She hasn’t lost a thing; I have simply gained a song.
The crime is that I didn’t have the copyright owner’s approval to make a copy. I haven’t stolen anything, I’ve only made duplicates without approval.
The only potential harm that can come to Britney or the record company is that I might conceivably have purchased the CD/single if I hadn’t downloaded the MP3, and they would have been $15 richer if not for Napster. If I wouldn’t have bought the CD either way, Britney and her record company will not be affected at all.
There’s a world of difference between “gee, maybe I would have $20 today if this guy hadn’t downloaded my song, but probably not, who knows” and “I had $20 yesterday but today I don’t.”
erislover, this may seem like a hijack, but I would like to draw your attention to another issue with the Information Age and Copyrights - artworks.
Consider this scenario:
A person creates a painting long ago - like a work of Jacques-Louis David from the 1700’s - for argument’s sake, say it’s 220 years old, OK? This work seems clearly to be out of copyright, right? And you should be able to use the image of it freely, right? Ah…
A private individual (or museum, it matters little, it seems) buys the painting in the US. They then “claim” (I have seen this several times) that “any use of the image of this painting, in any way shape or form, regardless of source of origin, is a violation of our copyright.” WTF - they have somehow gained a copyright on a 220 year old painting? Well…they are an official museum, and should have a lawyer who wrote the text, so they ought to know what they are saying, right…?
Then, when the painting is on exhibition in Kansas City, you go to see it and take a photograph of it. From what I understand, you have the right to do that, and to re-use that photograph as you see fit. Right? I’m not sure - and I’ve never got a straight, unambiguous answer from an actual lawyer.
Then, let’s say someone borrows your picture, and scans it on an HP scanner. Have they violated copyright? Whose? In what way? IIRC, they have somehow violated your copyright.
Let’s say it is YOU who scan it instead, and put it on your website. Well…then you see that other people who have scans of works several hundred years have put disclaimers such as “All scans are the property of X. Their use in any other way, shape, or form, profit or non-profit, is a violation of this website’s copyright and will be vigorously prosecuted…etc, etc”. Is this true, however? Do you own an actual copyright to a 220 year old image again?
Then, someone downloads your scan. Are they a criminal? Before answering, let’s look through the chain of evidence again:
A painter creates a work 220 years ago. Obviously, they would have had copyright at some time.
A person buys that work, and now claims they “own” the image. How?
A person takes a photo of the work, and claims copyright over the photograph. How? What if instead of the photo, they painted it. Obviously, they have copied the image. Are they a criminal now? What about using a digital camera?
A person scans the photo someone else took. Is their scan not just another form of photo? Do they now have a copyright?
A scan is posted, and downloaded. Who is the criminal, really?
It is at this point that I say:
[Half Price Store Guy]It’s the same thing![/Half Price Store Guy]
No one has ever been able to explain this whole mess to me. I’m convinced that if I can’t understand it, and I’m not all that stupid, then how in the hell does the average person stay “safe” when trying to put artwork online? And hideously Byzantine situations like this, when it appears clear to me that there is no way in hell, IMO, that a 220-year old artwork is not in the public domain, do nothing but create contempt for copyright laws.
Sure, but I’m not going to sway you. You think you have some right to free music. The fact is that I personally know artists that have been hurt by Napster. Not Britney, or Madonna, or Mariah Carey. You probably don’t hurt the mega-artists all that much. What you hurt are the up and coming artists. You may think that Napster is some wonderful promotional tool for these bands but it’s not true. The fact is that the internet is oversaturated with new acts and the chances of somone stumbling across a new artist through Napster is less than probable. The reason you hear of an artist in most cases is because someone (a big bad record company) promoted them. An artist without a record company is rarely going to get nationwide attention because most likely, not enough people will have heard of them.
The record companies have every right to protect their investment and they invest a lot. If their investments are unable to be protected, the result is, there are less new artists that they are willing to take a chance on. Sure, they will put out the N’sync CD’s. That crap is guaranteed to sell a fortune. But, the obscure songwriter who maybe is the next Springsteen or Paul Simon or whoever, is not going to be able to get someone to take a chance on them. Everyone suffers from that.
Luckily, the courts have disagreed with you and shut Napster down due to the illegality of their service. And the fact that when Napster came back, they have failed, should demonstrate that nobody is interested in this technology if they actually have to pay for something.
Don’t worry, Anthracite, the thread was hijacked some time ago I am actually shocked at that… I thought that images which were in the public domain were obviously not able to be violated copyrights. Of course, if you take a picture of a work you can have the copyright on the picture, but that has nothing to do with the work.
At least, I’ve always thought the case was that clear. That you suggest it isn’t is very, very troubling.
Which brings me to another question… can art reproductions be copyrighted? If so, then WTF is the problem with distributing MP3s?—Scanned images? MP3 and JPG are lossy compression algorithms after the ultimately lossy conversion from analog to digital. They aren’t even the same work (here’s where we’d have audiophiles on our side who think hat CDs sound worse than LPs, they’s definitely agree that MP3s aren’t even the same work ;)).
Consider that one isn’t violating a copright on a book if one paraphrases the author. Paraphrasing is pretty much the best description of lossy compression I’ve ever heard. Anyone think I’m looking at this wrong?
Bullshit. I said no such thing. I merely pointed out that your cite doesn’t back up your argument.
I’ll agree that you know artists who believe that they have been hurt. I know people who think that illegal immigration costs honest american’s jobs. That doesn’t make it true. If you have evidence, please present it. So far all the evidence I have seen says that music downloads don’t hurt overall record sales.
Napster is not the best possible promotional tool. It’s value for that is more or less random, but there is clear evidence that napster translates into higher CD sales, there must be some mechanism for that. I’m suggesting that the discovery of new artists via napster may be that mechanism.
True. relevance? I could give a shit who the record companies promote. They don’t promote talent anymore,
they just try and build a mass market for tripe. nationwide attention is hardly necessary for an artist to be successful. The ability to make a living as an artist is what defines success.
True, relevance? If they invest stupidly, do they have a right to a return anyway?
Nonsense, they were already not promoting new acts to the degree that they used to. This had nothing at all to do with napster.
But the record companies, as you have already pointed out, do a lousy job of promoting new talent. They prefer to manufacture crap. You’ve identified a real problem, but you mistake the reason. Record companies don’t promote crap because they think they are serving their customers, they do it because they have too much power and they’ve gotten lazy. It’s easier to promote crap then it is to find talent. This problem has nothing at all to do with napster, in fact, by killing napster, they effectively killed one of the ways consumers counterbalance their power, thereby making the problem worse rather than better.
Nonsense, Napster came back as a badly designed pay service. That is the reason that they failed.
Also the court was wrong in the law in shutting down napster. Napster never violated any copyrights, it was the napster users that did. Basically, the napster lawyers were buried in money, so yes, you can count this as a victory for the record companies if you like. But make no mistake, this is not a victory for artists. It merely gives the record companies more power over artists.
Let me ask you a question. Do the small artists that you know still own the copyrights to their own music? Do they still own them after they’ve managed to get a record deal? My understanding is that the standard deal with a record company is ‘work for hire’, so that the artist doesn’t own the copyright anymore.
Record companies are failing us. They exist now to create the largest possible market for the smallest set of artists, and to manufacture super-stardom rather than to find and promote talent. This represents the maximum return for the minimum investment for them.
I reject the notion that they are necessary or even useful in their current form, There is no evidence that they are even minimally successful at representing and empowering artists. Instead, they treat artists and consumers each as shills to be exploited.
Not that I’m suggesting that Napster was the correct alternative to them, I think the success of napster is merely an expression of consumer disgust with the music business.
Your underlying belief seems to be that people will always steal music if they have the option. But I don’t think that this is true, people won’t steal from artists that they care about. The internet and new technology has the ability to put more power into the hands of the artists, but only if we don’t let the record companies define how artists are going to connect to consumers in the digital age.
Think of napster as the canary in the coal mine. So long as the record companies are doing a shit job, there will be demand for services like napster.
According to the new laws, music artists, except for the ones that get to own studios and distribution rights, are effectively slave labor to the record companies. Record and movie companies want to control where you hear the media, on what machine you can store the media, the machines themselves, and even how you transport the media you buy. They even got Microsoft buckling to their will. Even the business-friendly Bush administration is looking into what these conglomerates are doing to hamper technological progress.
Here’s the problem with these new bands the record companies “take a chance on”. Let’s say I heard a lot about this band called String Cheese Incident*, and they sound like something I might enjoy. I see a few token ads in music publications, but the ads don’t mean much–I want to hear the music.
I’m certainly never going to hear any SCI on the radio, as few stations have room in the format for 15-minute jams of Bluegrass-tinged hippie rock. Neither VH1 nor MTV is going to get near them with a 50-foot pole. If I’m lucky, I might find a record store with a CD in the “Listening Station”, but that’s doubtful.
No, if I want to hear SCI, I’m going to have to go to my local music store and plunk down a significant whack of cash. If I’m like most people, I’m not going to pay $15 for a CD when I’ve never heard anything at all by the band.** I’m much more likely to buy something that I have heard a bit of, something that I’m pretty sure won’t be too bad.
Or…I could download some tracks from my favorite post-Napster clone. I might decide I don’t like them at all. I might decide I like them, download all their stuff and listen to it for free. I might decide I like them and go buy all their albums.
My point is that a record company may “take a chance” on a lesser-known band, but it really doesn’t mean squat if the music doesn’t get heard, and if it doesn’t fit neatly into one of a few formats, it isn’t going to get heard. File-sharing allows people to “take a chance” on a band, hearing their music without spending the money to buy a CD, the same way they might hear an artist on the radio. The only difference is that you, not the record company, get to decide what songs you hear.
The most sensible solution to file-sharing, it seems, would be to set up a system by which artists could be compensated through advertising, surcharges on CD-Rs, or subscription fees. The record companies will do everything in their power to keep this from happening. They have spent years building a paradigm in which they control what tiny sliver of music we can listen to for free, and they don’t want that control taken away.
And yes, as Sam Stone pointed out, the RIAA lost any respect it may have had before (with me, anyway) when they even considered attaching their little rider to post-9/11 legislation.
Sorry if I’m rambling–long day of studying, you know.
Dr. J
Listening to them right now in fact. What a great band! Note that my hypothetical leaves out their popularity among traders of live shows, which is how I discovered them.
** I’m not like that. I do so all the time. I’m far from typical, though.
My understanding was that Napster was sued for aiding and abetting the violation of copyright, a statutory offence.
A fair summary, except, to nitpick, it gives you a proprietary right over a chose in action (as opposed to a tangible chose in rem), so it is “property” - you can do with it as you please, even destroy it, but after your monopoly on copying is extinguished its commercial profitability is limited.
Failing who? The discerning public, who keeps hoovering up whatever the record companies offer? Certainly not the shareholders.
On your objection to the use of the words “stealing” etc.: sure, the correct term has always been ‘infringement’. Nowadays, however, here in Hong Kong (as a direct result of lobbying by the US Trade Representative on the behalf of US software companies and the US music industry), infringement of copyright is a criminal offence. If the recording companies wanted to forum shop, they’d sue in HK for violations of their copyright over the internet, in conjunction with criminal sanctions.
On the issue of damages for music companies: quoting stats of the rise and fall of sales compared to Napster’s existence isn’t helpful without direct evidence of a correlation. A judge would calculate it like this: the people who copied the CDs would have bought them instead. That’s the record companies’ loss and damage, as I see it. Its a little fallacious, as there is the incentive of them being free, but unless you calculate in an even more artificial ratio taking into account the probability that infringers might have bought the CDs in a shop, I don’t see how to get around it. Mr 2001 says:
to which I disagree. There is no difference as I see it in respect of a loss of future, expectational profit, and past, realised profit, except that a court might make a discount for the risk of the profit not being realised.
msmith537:
I’m sure someone did do that. If you’re really keen and have more time than I do right now, you could do a search at http://www.uspto.gov and find out who owns the patent.
Anthracite and Erislover
Copyright only subsists in a work if its sufficiently original (I won’t bore you with the exact terminology). If you scan a photograph of a painting, any alleged infringer would put the onus back on the photographer to show that the image was sufficiently original. Its not - the originality in the image actually subsists back in the painting. Copyright doesn’t subsist in just anything copied. Its a sophisticated law with lots of exceptions and rules.
capacitator
I have some interesting anecdotal evidence on this. My brothers in law are popstars in Australia. They really don’t make much out of recording at all. The reason for this is because the promotion of their records etc is a big business risk. I wouldn’t call it slave labour, by a long shot, but the money goes to the company because they take the risk.
I thank you for attempting an answer, but I’m afraid that I honestly have trouble understanding your meaning when you say:
Can you explain this with a little more detail for me?
Or, answer one (simple?) question: How can anyone have a right to a 220-year old image anymore? More exactly - if I scan an artwork that is 220 years old, with no additional artistic content or original (from me) alteration, and put it on the web - I don’t really have a copyright, do I? And thus, all those people who put text saying “all scans are copyright of me” are just putting up a scarecrow, as they really don’t have a leg to stand on.
I think that the idea that Napster helps promote new artists is a fallicy. I understand someone not wanting to plop 20 bucks down on something they have never heard before and Napster solves that problem. Then if you like what you hear, you can download the whole damn CD and burn a CD for you and your friends. Sure, some will buy the CD but many won’t. There is no incentive to. I know people with upwards of 60 gigs of downloaded music. Are they going to buy any of it now that they already posess it and can listen to it at home or in the car? Absolutely not. How many people get a free copy of Adobe Photoshop from someone, then go buy a real copy. I would assume not many.
So lets take that new artist. The record company just invested a large amount of money for studio time to record the CD, pay the engineers and producer plus any studio musicians. They paid for the artwork, the mastering, the pressing. They took out full page ads, put up displays in record stores and got the band on Letterman and Leno. The band is a bunch of starving musicians. They didn’t have any of the resources necessary to do what the record company just did. The record company is hoping that millions saw the band on tv and will buy the CD because they would like to make back their investment. They will do this by units sold. Yes, the band won’t make much from this because they have to wait until the investment is returned. But if everyone liked what they saw on Leno, they will buy the CD and maybe go to the concerts. There will hopefully be a lot of people at the concert because of the marketing the record company did and they will buy lots of t-shirts. Now the band is making money, the record company is making money. If the band is very successful at all of this, the record company will be more than willing to take another chance and the bands bargaining power has just improved. They will make more CD’s and make more money the next time around. They can even negotiate to keep the rights to their material. U2, for example, owns all of its publishing rights because they were powerful enough to negotiate that right.
However, if the band doesn’t sell enough units for the record company to make their investment back, say because thousands or more people downloaded the CD in its entirety from Napster, that band will not be making another CD with that label. The record company did its part but the public decided “Why pay when I can get it for free”. Everybody loses.
And when Napster announces it is going to be a fee-based service, what happens? Everyone flocks to Morpheus. They go to where the free goods are because for the most part * people don’t really want to pay for music if they can get it for free *. I would love to believe that people use these file-sharing services as a tool to decide which CD’s they will buy but from what I’ve seen, that is just not usually the case.
Ask away. I used to lecture this stuff. I just can’t guarantee its US law though.
They can’t.
Nope. In Anglo-Australian law, the authority is *University of London Press Ltd vs. University Tutorial Press Ltd *[1916] 2 Ch 601 at 608-9, which says “the work must not be copied from another work- that it should originate with the author”.
Generally, yep, if its a simple reproduction. They need to prove that its original.
If you take a picture of a work of art like, I don’t know, Michelangelo’s David or even the Statue of Liberty from an angle or while the sun is setting and there is something unique about it, then I’d think you’d have a stronger case. If you take a photo of the Mona Lisa, and its clearly just the Mona Lisa, then you own copyright in the photo, but its just unlikely to have much if any copyright in it because of lack of originality.
Judges are loathed to give anyone else the fruits of another’s labour and unfair competition law is often quoted as rationale in copyright cases. Why should you get the benefit of Michelangelo’s hard work? Not that he gets it, because copyright in it expired. But you certainly shouldn’t.
Photographers know this and so they take photos from planes, from boats, at night with time exposure, anything to make their photo original.
Music guy - I can’t see how Napster promotes new artists either. Consumer awareness isn’t increased because some newbie artist has a new single floating around in the labyrinth of Napster’s server. Recording companies promote acts through expenditure of money - increasing goodwill in the act by posters, tours, promotions, pressuring radio stations and DJs to play it, etc. The punter hears the tune, sees the poster, then buys the tune - or downloads it off Napster, not vice versa.
The alternative, in my hypothetical, is that those people would never have heard the band at all. They might have heard the name, or read an article, but that’s it. Sure, some will buy the CD, but many won’t. The question becomes one of which “some” is bigger.
There are only so many outlets for a band to get its music heard by a wide audience. Radio stations are not known for taking chances, especially since most of them are now part of national conglomerates. MTV or VH-1 might show a new artist, if he or she fits the format. An artist might get four minutes at the tail end of Leno or Letterman, if he’s lucky. There are plenty of ways to get a band’s name out, but unless people can hear the music, it doesn’t matter.
So take your situation, and imagine it from the point of view of the band that didn’t get a spot on Leno or Letterman. Since nobody heard the music, nobody bought the album, so the label dropped them anyway. If people could download the music, then some of the people who downloaded it could go on to buy the album–not as many people as might have if the band had been on Leno and scored a minor hit, but more than would have otherwise.
The bottom line is that file sharing will hurt the artists who benefit most from the record companies, and help those who benefit least. The record companies themselves will lose out, while the music-listening public will come out ahead. Either way, it’s the way of the future whether we like it or not. I suspect that the record companies know this, and that they’re working behind the scenes to set up new compensation systems and create new marketing schemes for when that future arrives, even as they try to put it off as long as possible.
But, thats my point. If a record company invests a large sum of money, they damn well are going to be sure that people hear of the artist. How did we hear about artists before the internet? By the promotional efforts of the record industry. The internet in its self is not a good promotional tool due to oversaturation. Finding a good band among 50,000 mediocre ones is a needle in a haystack. I know bands that have tried to self-promote themselves on the internet. It’s basically a losing battle. They combine this with a few local shows or maybe a small tour, because that is all they can afford. They end up with a few hundred listeners and they end up losing money because the masses don’t know they exist.
The marketing machine of the recording industry is the best way to get the music by the most people possible and it costs a lot of money to do. They have every right to protect their investment and their artists from a bunch of copyright infringers. So far, the courts have agreed.
A friend of mine thinks that the music industry has a war chest and will keep fighting file sharing outfits as they pop up.
I generally agree with your comment that the music industry doesn’t take enough of a punt on new talent - they don’t want to take losses on an unknown artist. This came to the fore when a radio station called Triple J (an indie music station, amazingly run by the government broadcaster) in Australia started its “Unearthed” talent programme, inspired by its discovery of Silverchair in the early 90s. The music industry missed Silverchair, and would never have got them if not for Triple J.
Your argument is that file sharing offers a forum for unknowns to make a name for themselves. I can see some merit to this argument, but of itself, its hardly enough to justify repeated and flagrant infringements of copyrighted music.
If someone set up a high profile file sharing site for unsigned talent only, I’d be impressed - and I don’t think the music industry would be bothered - on the contrary, the site would be doing its talent scouting for them.
And that is clearly nonsense.