I think you’re missing a point, I paid for the service fee enclosed with my CD R/W. People who buy cassettes pay a fee. And people who have an ISP will pay a fee. It’s just that the fee is invisible but costs certainly go up if expenses go up. What? You think the ISP will just cheerfully pay up without passing it along to the consumer?
And worse…the ISP would charge EVERYONE that same fee. So people who are using peer-to-peer are costing everyone who doesn’t use it money!
And suddenly we have a whole new level of theft.
But I’m still not seeing that as an ‘change’ in the law. It’s only an extension of current law that covers cassettes etc. The record industry has never truly tried to hit people for retail infringement (the copying of a song or songs by one person for another single person) but has always tried to tee up wholesale infringement. And that’s what Napster and it’s peers are, wholesale infringement.
I’d be willing to say that it comes down, not to control of fans actions, but control of the speed at which they can operate. If we go with the Napster figure that 1 billion songs were transferred (and I’m not accepting ANY corporate figure as gospel, being a corporate marketer myself) in September and each of those songs represented 50 cents to the artists and composers (a figure which I think is low) then we’re looking at a theft of $500,000,000 in one month. Colombian drug lords should be so profitable. At that rate the loss (just to the artists, not to the labels) approaches $6,000,000,000 per year. ASCAP currently claims 110,000 members so that would work out to $54,545.45 for every single member of ASCAP.
That’s not an insignificant chunk of change. Don’t you think that’s something the industry should try to get a handle on? If I still had something out there I’d certainly be after my cut, I can tell you that.
Remember, I’m an old, married father these days. I’ve never run into O.A.R.
But I have seen JCS several times. Including once at a rainy, muddy race track at the Mongomery County Fair. Now THAT was fun. Gotta love the mid-Atlantic.
I hate to do this, because I think this is the dirtiest trick in a debate…
Can you find a cite for that 1% figure? I’ve looked (in order to refute it) and haven’t found a back up for it.
Anecdotally I can remember when Michael Jackson (in the mid-80s) signed a deal in which he got $1.25 per record sold. At an rough average of $12 per record (I told you it was the 80s!) that mean he would be getting not 1% of the net profit but 10.41% of the gross sale.
Obviously MJ isn’t Joe Blow musician but I seriously doubt that, in the last 15 years we’ve gone from a top end of 10% of the gross to 1% of the net.
And that doesn’t factor in composer royalties. And the fact that the majority of composers get to keep their own copyrights. This is a far cry from the 50s when Dick Clark on bandstand would tell a label, “Sure, I’ll put your stuff on…but I get half the copyright” and the label would just give it away because the label owned the copyright!
I sensing some hostility here. You argue that the record companies aren’t really entitle to the profits they make off the musicians work but they ARE entitled to the losses from them? I’m not seeing the logic here. Why, assuming the labels are for-profit enterprises, should the equation be unbalanced? Aren’t they entitled to the profits AND the losses?
Sure, but in my experience, the only people truly willing to fight for a thing are those directly effected by it. I don’t think it’s safe to say that a volkerwanderung would occur lending it’s support ot peer-to-peer music sharing.
As previously mentioned, assisting in any way the commission of a felony is a felony. Napster, by definition, is assisting in massive violation of copyright.
Are the individual users in violation of copyright? Of course, I think we’re all in agreement on that point. But Napster is also on the shady side of the street, here.
The ‘guns’ per se are NOT aiding and abetting a felony as a gun is an object. The analogy doesn’t hold as a true analogy would have the labels suing the software itself for copyright infringement, and objects aren’t sue-able.
I don’t really think the fair use and ‘no legal use’ laws are all that vague. Yes, you have the right under fair use to make personal copies of a data archive (software, music, whatever) so long as you don’t distribute it. And, if MP3 had ensured that only the legitimate owner of an archive could access it I’m sure they could have been worked with.
Napster, on the other hand, was set up NOT so a person could access his or her files from any location but to enable file sharing between users. By definition, the mission statement of Napster is to violate artists copyright. Again, had Napster set in place technology to prevent such file-sharing, they would have been coloring (techincally) within the lines. But I think we all are willing to admit that A) they wouldn’t have been as popular and B) that wasn’t the idea anyway.
You ARE asking for a hijack there. Two major differences in your ‘gun’ analogy (which I still don’t admit is applicable):
First, a gun does have a legitimate use in hunting, target shooting, home protection, etc.
Second, while arguably (and shut the hell up all you 2nd amendment heads! Go set up your own thread) gun ownership is protected by the constitution. As is copyright. The right of people to enjoy their pleasures at the expense of others, however, is not.
You guys like Jimmie’s Chicken Shack, too? A couple of years ago, they actually played here in my tiny town.
The owners of this really large venue that was built for (snicker) country line-dancing (guffaw), tried to salvage the huge amounts of money they were no doubt losing for awhile by running big-club level rock acts. It was great while it lasted. Sadly, they made some bad choices on a couple of the acts they booked, lost big-time money, and stopped that practice. The edifice to line-dancing now sits largely vacant, save for children’s rollerskating on Saturdays.
Anyway, The Chicken Shack was one of the few rising acts they had in, warming up for Jackyl, IIRC. Most of the acts were on their way down from the heights - Cinderella, Ratt, Quiet Riot, etc.
Jimmie’s Chicken Shack kicked ass live! I helped them load up their equipment after the show, and got to talk with a couple of the band members. The guitarist signed the CD I bought of there’s.
Hijack over. Gee, this doesn’t even resemble a Pit thread anymore, what with this hijack and idiotboy and Jonathan all debating and making nice.
How’s this? ANY NUMB-FUCK THAT DOESN’T LIKE JIMMIE’S CHICKEN SHACK CAN GO FORNICATE WITH A WOOD-CHIPPER!
No, I know the ISP costs will go up, but it’ll be slight. Hardly noticable. I don’t expect people to get it all for free…just reasonably priced, compared to CDs…
Ah-ha! But this is what the label does, right? The unsuccessful bands are costing the successful bands money. OK, so it doesn’t translate exactly…
But this happens ALL the time. Companies always jack up prices due to shoplifting, damaged merchandise, losses, etc…even though it’s not every consumers’ fault. Or with the recent Natural Gas price hikes. I certainly don’t use as much gas as the businesses down the street, but because they use so much, the prices are going up, and I have to pay more!
It’s not theft…it’s “business as usual”…companies just recouping their losses.
Well, there’s a difference here. You’re comparing royalties based on a single play vs. royalties based on total number of listeners.
There’s the major difference between Napster and the other forms of distribution.
In radio & TV, the royalties are measured by airtime. However, if you base the royalties on the total number of listeners, you’ll come up with the $54,000+ per artists there, too.
However, it wouldn’t be fair to only pay a royalty on a single song that millions of people have access to, like on Napster.
Change…Extension…same thing. Basically any kind addition to the law. Something that can cover all the bases…a “Golden Rule”, if you will. And I guess this “Golden Rule” is what were looking for. We all disagree on what this rule should be, as would almost every other artists out there.
I, as an unsigned artist looking for big time exposure, want as much “fan freedom” as possible, so they can do what they want with my music. However, without a major community like Napster, it’ll be alot harder for us to be heard. Without the big names there, no one will come.
The already established well-off artists, want the total opposite. They want no one to give anything of their’s away for free. They wanna squeeze every penny of profit from it.
So, where’s the middle ground? I wish I knew…
They’re a buncha kids from DC, who are all in school up here at Ohio State U. They’ve gotten big over the past couple years. Just wondering if ya heard of 'em.
Sorry…not an exact figure. Im probably exaggerating, mainly because I’ve never seen a real contract in my life and have only heard horror stories on “Behind the Music”. But I still think it’s freaking unfair, dammit!
Ok, wait a second. There’s a difference between how I feel it should be, and the way it is.
The way it is (from what I understand): The record label makes a crapload from the CD sales of a successful band called Band A, but incur major losses on untalented pieces of cow dung called Band B. The label takes a little extra percentage out of Band A’s next record to cover those losses. So the label never sees a negative bank account, or at least the major ones won’t.
The way I feel it should be: No record labels!
See how much less complicated my fantasy world is?!?
Seriously, though. I think, originally, record labels were a great idea. Help artists who can’t afford to record, produce and distribute their CD. A “noble” cause. But like in most industries, the one’s with the most get greedy. Then you have what the industry is today.
But now with all of the online tools available to independent bands, it’s possible to be successful without the need of a label. Just a little elbow grease and some motivation, anyone can promote themselves…I have.
But without Napster, we’re seriously crippled in our attempts at exposure.
Anyways, I’m babbling here…
Ok, I’ll drop this point, because now that I think about it, it really doesn’t make sense…
Alright…I’ll admit it…I’m not a lawyer.
So, help me out here: Napster had a disclaimer on the main screen every time you logged in, placing the responsibility on the user…why didn’t that protect them? Am I wrong in thinking it should have? You said that we do have the right to make personal copies, and downloading those copies off of Napster, of material we already own is legal, right? That’s what Napster was supposed to be used for…but obviously it wasn’t.
Kinda like the “For Tobacco use only” products. What person actually smokes tobacco from a bong? I mean c’mon, who are they foolin’? They seem to get away with it by placing a “rule” on something that’s obviously sold solely on the fact that the rule is blatantly ignored!
Is Napster NOT an object?
But that’s what I’m saying! You can’t sue a gun and you can’t sue a software program. You can sue the people resposible for manufacturing that product, right?
What is the reason why this analogy doesn’t work? They seems almost identical. Both products are mainly used illegally (copyright infringement & murder)…but are iintended for legal purposes (legal personal copying & hunting/target shooting/protection).
But whether you’re protected to own a gun, you are not protected to kill someone with it…
You don’t even need an amendment in the constitution to own software. It should be less of an issue!
Milo - You fuckin’ rock!!!
Yeah, we’ve got one of those “Big hair band retirement clubs” here in Columbus, Ohio. Seems every weekend is another flashback to the 80’s!
Assisting in any way in a felony is not a crime. If the bank robbers drive a car, the car is assisting them in commiting their felony. But the car manufacturer is not liable. If the bank robbers were walking down the street and someone gave them a lift to the next town, not knowing they were bank robbers, that person would not be liable.
Napster allows users to share files, in this case sound files. They really have no way to know whether the files are copyrighted or not, except by the titles people give them. But anyway, lets say that Napster does manage to shut down all sharing of copyrighted files on their system. What happens then? They shut down since no one uses them anymore.
The vulnerability of the Napster system is that it requires a central server that can be shut down and a central company running the server that can be sued. But there are systems that do not require a central server, and are not released by a company hoping to make a profit…they are freeware, no one can be sued for writing them. Sure, you can sue napster, but how do you sue some kid in a basement who released his software anonymously?
Even if it went up a dollar a month (which would be the minimum, I’d guess), you’d be looking at transferring tens of millions of dollars per month from Joe Blow citizen to the labels pockets. And I repeat, most of those persons won’t be using a peer-to-peer file sharing system. Can you, ethically, insist that someone else pay for your pleasure? I mean, hey, it sounds good in principle, but I have visions of myself paying for someone else to play lawn darts or something somewhere down the road…
Don’t get me started on natural gas prices. I’m out 2 grand so far this year on propane. I supply my own.
(And let me tell you that I’m currently with a firm called Public Utilities Reports. I could puke up more analysis about the rise in energy (not just natural gas) costs than you would want to hear. Be warned.)
What were we talking about? Oh yeah!
Yes, risk assessment by retail chains and corporations is spread out as a cost of business issue. Nonetheless, each industry does what it can to minimize that risk and cost by combatting it. They attempt to catch shoplifters, consultants look for ways to reduce damage in transit, etc.
These efforts are costly and difficult but they’re worthwhile because it enables the firms to keep their prices lower than they would be if the allowed wholesale shoplifting etc. And lower prices=more business.
So I don’t think saying, ‘It’s business as usual’, helps your argument. Business as usual attempts to minimize loss through theft, which is what the labels are attempting to do.
I’m not sure I understand your point here. ASCAP has set up its royalty structure based upon number of ‘users’ (those using a piece of copyrighted work through listening or performing or what have you). I don’t think it would be unreasonable for ASCAP to set up a royalty system through Napster (or the ISPs, I suppose) based upon the number of ASCAP covered songs available for d/l or actually d/l’d.
And I don’t believe for a minute that Napster couldn’t track what songs are being d/l’d. That’s a pretty simple application of existing technology.
But suppose Napster got charged 10 cents (which is low) for each d/l’d song? With reported (no cite, I saw it yesterday) of 1 billion songs transferred in September, Napster would then be liable for $100,000,000 per month in royalty fees to ASCAP in addition to whatever fees are due to the record labels. That means to break even, if we assume 1.5 million users (not stipulated, just a WAG) those users would have to pay Napster $66/month just for Napster to cover one small segment of it’s costs. Plus overhead, salaries, technology, licensing, etc…
I don’t think it’d be unthinkable that Napster monthly fee would have to be in the $80-100/month framework to make a profit. And if the artists and labels got half of that (call it $40/month) I’m sure they’d be happy because that would guarantee them a revenue stream each month from people who would not have spent that same amount on CDs each and every month over the course of a year.
Remember, that’s the equivalent of buying 2-3 CD’s every single month. That gets costly. I know I couldn’t do it when I was young.
In terms of a middle gorund I don’t really see the need. Current law covers this situation (with, as discussed, some modification to apply existing applications to a new technology). Bang, the artists get paid, the label gets paid, and everybody’s friends again.
And I certainly have no objection to Napster (or anyone) giving away music if the copyright holder has no problem with it. If you wish to give away your work I salute you. But I feel a need to abide by a copyright holders wishes on the other side, too.
In the above paragrpah you tell me that it will be difficult to promote a file-sharing community without a centralized site and the larger acts to draw fans. Is this then, about convenience (not unlike something Milo said way up there)? If so, I find that reasoning indefensible. Convenience as a justification for violating anothers rights wouldn’t hold up regardless of any example. I am inconvenienced by my morning commute. Traffic is bad and slow. For my convenience, would I be justified in slashing the tires of the other cars parked on Charles Town Pike? Or blocking the road immediately north of my house so those dang West Virginians couldn’t come barreling down Route 9 at 90 mph? (Curiously, that last has been actually proposed)
I haven’t, I admit. But I support, as a matter of policy, any mid-Atlantic band trying to make a mark. Send them my love.
OK, I can’t find a figure either. And, during my musician phase, I never came within a light year of a real contract either. But speaking from a publishing perspective (books this time) I can tell you that our costs are typically between 70-85% of the cost of any single sale. If we apply that (an example I admit is shaky, but it’s the best I can do right now) to CD sales and we bring in an average CD price of $15 (for ease of math) then the record company clears about $3.75 (at 75% cost of production) per CD. If the part of that they credit the artist with is 20% then the artist makes 75 cents per CD sold. Now, bearing in mind that the risk is entirely the labels, is that unreasonable?
Well, I’d have to point out that Band A (in your example) doesn’t have their percentage reduced because the labels had a year of mostly dogs. Their percentage is locked in due to their contract. Neither the artist nor the label can unilaterally change that contract. At the most, the label can elect to drop the artist, at which point the artist is free to pursue a new, better deal.
And here, I think, we come at last to the crux of the biscuit. It is certainly possible, at this point in history, for bands to operate without labels. However, this is a slower and less certain process. What the labels sell to the bands is both certainty and security. Some bands elect, when they sign, to go on salary from the labels and treat that as their advance to pay off later. They also know, when they sign, that at such and suchc a time they will be in studio, paid for by the label, recording 50 minutes of music for release at such and such a time.
Bands that go the independent route, however, have no such thing as security or certainty. But they do have freedom and get to keep a larger share of the proceeds of their work.
Now, given these two choices, if a band chooses to go the customary ‘label’ route, shouldn’t they act within the guidelines of their contract?
Hey, I’m not a lawyer either, but in my work I need to be extrememly cognizant of copyright issues. Comes of being in publishing.
Napster has a disclaimer, but it’s not on the front page. But I argue again that Napster has no fair use as currently constructed other than to promote the violation of the rights of copyright holders. If their business model had stated that they were there to promote ‘portability’ of music and they had taken steps to ensure that, if a person u/l a file only that person could listen to it (and, for that matter, that the file was played FROM a Napster server, not transferred to a new system) I think they’d be perfectly within the law to do so.
But Napster has always associated itself with the happy-go-lucky transfer of copyrighted works between users. And that’s where the step in to the area of ‘aiding and abetting felony violation of copyright’.
As for the ‘tobacco use only’ issue I’ve found one cite for Nebraska where a head shop has had it’s supply of drug paraphenalia (sp?) confiscated regardless of that ‘TUO’ notices. Here’s the cite:
It’s old but I think it applies. I can also offer, anecdotally, that the local record store that specialized in head gear (Penguin Feather records, Rockville, MD) in the 80s had to pull it’s material and eventually went under when Maryland decided that it was time to crackdown on head shops.
It’s my not-so-legal opinion that TUO advertising of products that are used for illegal purposes is still against the law but most areas that allow it don’t deem it a worthwhile prosecution.
No, Napster is a corporation. A completely sue-able entity.
However strange the legal fiction of a corporation as a ‘person’ is to me, it’s still true.
I think I could cheerfully conclude that the majority of guns in the US are not used for illegal acts. But apart from that, I think I still have the effective argument that Napster is not designed as a file-copying-for-portability system. Guns are purchased with the belief on the part of the seller that they will be used for legitimate purposes. When Napster, on their site states:
and
and lastly
Highlighting my own.
I think they’ve stated their position fairly clearly. And it’s a position that puts them directly in the wrong in regards to copyright laws.
And if you do so, you should be prosecuted for that act. So, if Napster is setting up a system enabling millions to violate copyright, shouldn’t they then be prosecuted for that act?
Now I’m thinking of going off and nominating this thread for ‘Most Courteous BBQ Pit Thread’!
I’d have to say that neither of your cases apply. In the first one, the car is sold with the good faith belief on the part of the sales office that it would be used for legal purposes. In the second, the law has always had ‘intent’ as a part of the legal process. If the person giving the bank robbers a ride is unaware of the crime then they have not assisted in the commission of a crime but rather, were duped. However, waiting in the car out front with the motor running, is against the law. While that person didn’t actually rob the bank, they made it easier for the thieves to commit it and knew they were doing so.
There are two points here.
First, is Napster aware of it’s crimes? I’d have to say (with respect, Lemur) that it’s extremely disingenuous to say that Napster isn’t aware that the vast majority of the file transfers acheived through the Napster service are of copyrighted material. For crying out loud, they specifically mention copyrighted material in their promotion literature and have a designated ‘Copyright Agent’ mentioned in their corporate policies. It’s safe to say that they know what gives.
Second, if Napster does block all access to copyrighted works (as I think they should, at the discretion of the rights holder) and they shut down through lack of use, doesn’t that, through basic logic, mean that they were being used exclusively as a means to avoid copyright? I’d think that would simply be proof-positive that the label interests were indeed being violated by Napster and its users.
As IB and I have discussed, it’s not necessarily the software that is in violation of copyright, it’s the ones who make it available. In the case above, each of those systems has to be hosted somewhere, and I’m pretty certain the hosting of such would fall under the ‘no legal use’ doctrine of copyright law.
Anyone who bothers to read my ramblings knows where I stand on this subject, but in case you steer clear, I’ll tell you that I think IP theft is unholy and Napster is the high priest at that alter.
So, I’ve got a bit of moral discomfort right now, because I (and my company) have just taken on some big work for Napster. We do network security stuff.
I thought this was kind of interesting: Napster is in an unmarked building. They have a locked front door that the receptionist needs to open to let you in. They get periodic bomb threats. Whenever they have a high-profile news piece, like a judge rules or something, they have an armed guard at the front door. Their network is attacked almost daily.
I was surprised to discover the number of enemies they had in the public at large.
