What They'll Never Tell You About the Music Business

by Peter M Thall

  Certainly intellectual property is a property right. The RIAA and the NMPA (the National Music Publishers Association) say it is a property right period! What I create is mine. Period! This view permeates the copyright owners’ world. What then, is our culture? An accumulation of other peoples’ property? Whose culture is it, then? Certainly not “ours.” How can it be “ours” when we have to ask permission to use it? And how can a culture survive and expand when innovation is stifled by the threat of lawsuits?

  The licensing archetype needs to be reformed. Everyone acknowledges this. In the United States, if the industry does not do it, Congress will do it for them. And no one is ever happy when legislatures interject themselves into their world—especially when their world is so complex, so filled with custom and tradition, and so beholden to the industry’s own peculiar sense of balance among authors, publishers, and recording companies.

  No, copyright is not mere property. It if were, it would follow the rules of property and government regulation that enforces property rights. A primary difference between copyright as property and ordinary property in the form of goods and services is that the cost of producing a copyright does not reflect either the cost of its reproduction or its distribution. Another one is that intellectual property is more vulnerable to theft (which we call piracy) than ordinary run-of-the-mill goods. For a user of intellectual property to pay less than the value of providing the property via distribution means such as radio, television, motion picture theater presentations, even the Internet, is anathema to creative people and their supporters, the publishers, record companies, film companies, etc. And why not? People are willing to pay for water that they can get for free? Why not copyrighted works?

  WHAT WOULD THE GREEKS DO?

  Back to the Greeks.

  You may remember, in Sophocles’s drama, Antigone, Polynices, Antigone’s brother, has been killed; King Creon has ordered no one shall touch or bury him. Antigone is very upset by this command. “Don’t touch the send button!” say the modern-day Creons. “Infringement suits await you!”

  Anyway, Antigone disobeys the command and goes ahead and buries Polynices, and Creon comes out of the wings and says, “What—are you nuts? Why did you do this? Don’t you know I’m the king and didn’t you hear my order?” The point he wants to make is that his law is supreme. He is the king and his rule trumps everything. Or does it? Antigone’s response, “Yes, that’s true,” she says. “But your law doesn’t trump human nature. There is something bigger and older than your law. After all, it was always the right thing to do for a sister to bury her dead brother.” There is something in all of us that tells us the course of action that is right for us.

  Antigone is no dummy. She doesn’t want to be jailed or killed by this bozo king, but she responds to her nature. Just as Medea laments the fact that passion has taken over reason, Antigone has answered the command to do what is instinctual in us. The laws of nature will force us to do right.

  But what, then, is right?

  Do you believe greed and stealing are less right than respect and discipline—following the rules?

  Germany has a fair share of philosophers who have dealt with this question—from Immanuel Kant to Arthur Schopenhauer. What is moral to Kant requires actions whose imperative is “categorical.” He dealt with universal truths and maxims. His sense of morality affects all the people, all the time, at all places. The moral worth of participating in what we call illegal downloading is something he would enjoy discoursing on. Schopenhauer, of course, differed in that he felt it was futile to attempt to base morality on reason. Kant postulated that freedom of action is an absolute prerequisite of morality. But what he meant by “free” required that people act on the basis of reason alone, independent of sensuous impulses. Schopenhauer, for his part, felt that the will obeys no law of reason and no law whatsoever. His reality is entirely irrational. This is not to say there is no morality in Schopenhauer’s world. On the contrary, moral behavior is okay as long as we agree that it is derived only from the knowledge of what he calls “unity.” In nonmoral action, the intellect merely facilitates the impulses of the will. Ironically, moral behavior turns us against these impulses. I wonder what he would have said about the dilemma facing the music industry today.

  There is one memorable statement of Schopenhauer that indicates that he might be not so far from understanding at least the musical impulses of our 21st century culture. Perhaps anticipating the ever-changing musical landscape that we have been experiencing since Elvis Presley replaced Mitch Miller, he said, “I have long held the opinion that the amount of noise that anyone can bear undisturbed stands in inverse proportion to his mental capacity and therefore be regarded as pretty fair measure of it.”

  There is a battle going on now among the copyright and anticopyright interests. Some compare it to the book and film The Perfect Storm—except we don’t have the confluence of three events creating the problem; we have dozens! In the United States, whether it is the effort to repeal the Fairness in Music Licensing Act, reestablishing in California the seven-year rule for recording contracts, establishing one in New York State, judicial modification of the line of decisions affirming state sovereignty smmunity where public universities can use music and other copyrights without care because of the immunity they have been granted by the eleventh Amendment, or now the French consumer body UFC-Que Choisir which is suing record companies and retailers over the production of copy-protected CDs because, in their mind, encryption penalizes customers by not permitting them to copy master recordings freely! How unattractive was it when the US Congress ran away from SIPA and PIPA, frightened of reprisals for the exercise of reason? This naturally is further complicated by the EU hegemony and yet another layer of bureaucracy. And last, but not least, the clearance nightmare, about which I have already written.

  Whatever it is, wherever you find it, there is a war going on—and it is becoming stronger as I write.

  In the digital rights area, as well as in the music clearance area, the battle is between those who use passion to define their strategies (while hiding behind the cover of reason)—the copyright owners—and those who use reason to justify their behavior (while hiding behind the cover of passion)—the consumers. Those who wish an easier and more economical access to the music of their cultures are battling with those who want to deny them such access except on their terms, their parameters, their paradigms, their conditions, their specifications, their financial demands. I am a lawyer. How does that qualify me to preach about the right and the wrong of music piracy? The Greeks help us out here as well, if I may extend the parallel between ancient myth and modern life.

  In The Republic, Plato defined law as reason unaffected by desire. Not long afterward, Aristotle defined law as reason without passion, and wrote that reason applied to the law must benefit all, not just the few. Has the music industry got it backward?

  CONCLUSION

  When all is said and done, and the extremes on both sides are neutralized by the judicial process, legislative intervention, wiser choices by the copyright community, and the passage of time, the survival of copyright, as we know it, and as we believe it should exist, will depend on two things. First, does the citizenry understand the purpose of copyright? And second, if they do, are those who enjoy the benefits of copyright willing to recognize a balance between their interests and those of the rest of the population?

  Whether or not this balance is achieved depends in part on education and in part on the behavior of copyright owners. Once the public processes the information that they have been presented with for the first time—that is, once the public deals with the fact that copyright is no longer invisible to them—hopefully, they will recognize that copyright is as much, if not more, in their interest than in the interest of the copyright proprietors.

  The Grokster decision has most certainly reduced the need for copyright interests, at least in the United States, to sue the individual users in the peer-to-peer environm
ent. (The new standard for secondary copyright liability, the Grokster standard, is whether the manufacturers created their software with the “intent” of inducing consumers to infringe copyrights rather than whether the software itself was capable of noninfringing uses—the test in the Sony Betamax case of 1984.)

  Taken together with the preliminary success of legal download options and the fact that the music industry is slowly awakening to the needs—and societal rights—of consumers and not just of themselves, I am cautiously optimistic that this is not a time when we can bemoan the end of copyright, resulting from the pernicious exercise of remedies afforded by the world’s diverse assortment of copyright laws, but rather a time to seek theirs transformation into the beneficial mechanism that it needs to be to serve the interests of all peoples and all industries.

  Hopefully, the public will recognize that copyright is as much, if not more, in their interest, than if there were no copyright at all—a proposition that is not as unlikely as it sounds. Back to Medea—and I quote:

  Things have worked out badly in every way, sings the chorus.

  Who can deny the fact? Nonetheless,

  You should not assume that’s how things will stay.

  I just hope that the chorus is singing in tune and getting it right.

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