Tag Archives: Digital Downloads

Copyright: it’s the end of the world as we know it.

Abraham Maslow’s famous “hierarchy of needs” places self-actualization as the pinnacle of human behavior.  To illustrate what the phrase “self-actualization” meant , Maslow said:

“a musician must make music, an artist must paint, a poet must write, if they are to be ultimately at peace with themselves.” 

Of course, the thing that is important to note about Maslow’s hierarchy is that physiological needs are at its base, i.e., a person’s basic needs must be met before Maslow's Self-Acutalization hierarchythat person can reach self-actualization.  In other words, “a guy’s gotta eat”!

Maslow’s theories shed some light on the ongoing social debate on the Internet regarding whether musicians would continue to produce quality music if copyright as we know it were to be abolished.  A different argument, though very related, is whether money motivates one to be creative. 

One movement advocating such ideas is the “Free Culture Movement.”  Another less extremist movement is Stanford professor, Lawrence Lessig’s “Creative Commons” group, which advocates modified forms of traditional license agreements as a social compromise to “reconcile creative freedom with marketplace competition.”  Watch Lessig’s video, released today on TED, entitled “How creativity is being strangled by the law.”   For another this interesting discussion, see the site Against Monopoly.

The underlying assumption of some of the parties involved in the debate, which is ostensibly grounded in the record and movie industry’s recent campaigns against infringers, is that all intellectual property should be free for the public to use without payment and that the antiquated copyright laws should be modified or abolished.   In my opinion, this extremism  ignores the foundation principle of Maslow’s hierarchy of needs, that in order to achieve self-actualization, an artist’s or musician’s base needs must be satisfied.

Proponents of the free culture movement observe that creativity survived many years without the structural form which copyright superimposed upon it.  Indeed,  it is often observed that the great works of Mozart were created without the existence of copyright laws.  Don’t forget, however, that Mozart wrote many of his works while being employed by benefactors such as the Prince Archbishop of Salzburg, Heironymus Colloredo  and Emperor Joseph II of Vienna, names that are certainly not as prominent as Mozart’s.   In fact, where would the world of the arts be without the billions of dollars that have been donated by benefactors such as J.P. Morgan, James Smithson, Bill & Melinda Gates, Andrew Carnegie, Henry Ford, John D. Rockefellar, just to name a select, if not elite, few.  So, while it is true that “a musician must create music,” it is also true that a musician has to eat. 

Long before the existence of copyright laws, there was a strong relationship between money and the creation of arts and music, and it will be that way until we abolish our system of currency as we now know it.   Walk around any great city and witness the existence of hundreds of pieces of commissioned artwork.  Listen to the commissioned works of Mozart, Beethoven and other great composers, who existed at the hand of benefactors.  Walk through the Museum of Modern Art and look at the works of art generously donated by J. P. Morgan and other benefactors.  Whether it be a king or a record label, money benefits art.  Creativity, like it or not, is often inspired by the almighty dollar, whether that is represented by paper currency or some other bartered for compensation which meets our base needs as human beings.  

That’s not to say that people would not continue to make music or art if they were not compensated for it – they would.  That is an entirely different question in my mind.  People’s hobbies and past time activities are in a slightly different class than, say, the copyrighted works of Don Henley.  If great singer-songwriters such as Henley could not make a living at playing music and writing songs, I would venture to bet that most of us would never had heard of The Eagles.  Again, even a great musician has to eat.  If the musician cannot meet his base needs doing what he loves to do, a musician will meet those needs some other way and, therefore, there would be less time to do what he loves to do.   So don’t confuse the musings of the masses with the creations of the geniuses.

The only legitimate question remaining, then, is how should a musician get paid for the music he or she creates?  How should the songwriter get paid for the songs he or she writes?  The answer, in the United States, is by virtue of the rights created in the Constitution, Article 1, Section 8, Clause 8, which gives Congress the right:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries.

The portion of this Clause dealing with the arts is further codified in the various Copyright Acts and amendments thereto.  In a nutshell, the Copyright Act creates a legal fiction, called intellectual property rights, which gives creators certain exclusive rights in their works, including the rights to produce copies, create derivative works, perform or display the work, and to sell and assign the works, among other things. 

The laws in the U.S. are based loosely on English concepts and laws that date back to the 17th and 18th century, which were a direct result of the invention of the printing press.  The first actual copyright law was the Statute of Anne, or the Copyright Act 1709.  Thus, the concept of “copyright” is a three-hundred-year-old concept that has survived the evolution from printing press to piano rolls to digital media, and I have little doubt that it will continue to survive through the technological age, despite the rumblings of these groups. 

As the law often does, it must evolve, albeit it ever so slowly, to encompass these new technologies. The good news is that the debate that is ongoing in the new virtual marketplace of idea will help us formulate new and improved amendments to the laws that will hopefully address the perceived dichotomy between the rights of free speech and free culture and those of the creators and owners of intellectual properties to receive just compensation for their efforts and investments.

In the end, this blog is my response to viewing Larry Lessig’s video, as I said, posted today on the TED website, entitled How creativity is being strangled by the law (See the link above).  In it, Lessig harkens back to the days of Sousa when children sat on the porch and sang the songs of the day.  Lessig told of how Sousa decried the advent of the phonorecord machine as the demise of creativity.   He points out that in our current state ot technological advance, copyrights should be “democratized” because the new generation of children use copyrights to create something uniquely different, that is to say they use the copyrights of others as “tools of creativity” and “tools of speech.”  Since every such usage requires a copy, the arguement continues, every such usage is presummed by the establishment to be an infringement of someone’s copyright.  Lessig’s solution is that the creator should simply license the use of their creation for free in the instance of “non-commercial” usages, and retain the rights to exploit it commercially.  He refers to this as the “Sousa Revival.”

My question to Professor Lessig is this:  why does the fact that an entire generation of Internet downloaders who are using copyrighted material to create derivative works mean that the rights of copyright holders have to be abolished or even diminished?  Why do the creative whims and urges of those who utilize other people’s copyrights to create different, derivative works supercede those of the people who created the original works?  Why should they?  Are the audiovisual images of a actor portraying Jesus Christ lipsyncing to an infringed copy of “I Will Survive” so creatively valuable as to supercede to the rights of Gloria Gaynor to distribute the original? (This creation is one of the examples in Lessig’s video presentation).  Consider this carefully before you answer, as it is a slippery slope.

This brings me to another relevant observation: people would generally not want pay money to hear most children sitting on the porch singing their songs, unless that child happens to be a Don Henley protegee.  That is the difference between most of the music ony MySpace, for example, and the music that is generally downloaded on iTunes.  There is a tremendous difference in the value of the spontaneous, albeit creative, songs of a child and the intricate lyrics and melodies which are the product of a genius the likes of Don Henley.  That is precisely why almost 100% of the product downloaded from Napster in the early days was product that had been recorded and marketed by major record labels.   It had intrinsic value.

Let me illustrate these principles with an example from the world of physical property.  Person A has a piece of property populated with a lot of trees.  Person B, owns the lot next door, which is flat and has a nice stream of water running around its perimeter.  Person C comes along, see this situation and, overwhelmed with creativity, cuts down Person A’s trees and builds himself a house on Person B’s lot and claims it as his own.  When Persons A and B confront him, stating that the law says he cannot do what he did, Person C responds that his creativity is being strangled by the law and, therefore, the law should be abolished.  Is Person C making a good argument?  Is Person C likely to prevail in court?  No.  Yet, this is the argument of the Free Culture Movement and, in some ways, of the Creative Commons.

Just as the law creates real and enforceable property rights for a person who owns a plot of real estate, the law creates intellectual property rights so that person can own an intellectual creation and enforce his rights to the exclusion of those who usurp it.  Abolishing the one makes no more sense than abolishing the other.   Abolishing the intellectual property right a person has in a copyright, therefore, devalues the creation.

Now, imagine that Person A’s lot was, instead, full of reeds and twigs and Person B’s lot was full of ravines, rocks and arid soil.  Person C would never stop to take a second look!  The barron options now before Person C would NOT inspire creativity in most people.

As further illustration of this principle of intrinsic value, ask yourself whether the Jesus video referred to earlier would be nearly as popular, nearly as creative, if the actor’s own singing voice had been used in place of Gloria Gaynor.  The answer is probably no, because the reason that the video of Jesus Christ singing Gloria Gaynor’s “I Will Survive” is so popular is because it incorporates a copyright that already has intrinsic value and, therefore, adds additonal value to the video.  The arguments of the free culture movements omit or overlook this concept of intrinsic value. 

What I do like about Lawrence Lessig’s movement, Creative Commons, is that it is, in the final analysis, based on the principles of the Copyright Act, i.e., that the copyright has value and that its owner has certain exclusive rights, which he can assign to others.  Lessig’s solution is essentially using existing copyright laws to create a unique license that attempts to strike a balance between fair use and full copyright reservation.  In the end, however, the license are based on the rights already granted in The Copyright Act, proving that the copyright laws as they currently exist allow for the very thing that these groups seek.  I cannot agree with him more in that respect.

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The long tail wags the dog! An independent artist succeeds using the Internet

I have often advised my clients in the past that the new direction for independent artists is what I refer to as “guerilla” marketing, meaning finding alternative means of marketing your product.  One of the most explosive methods of doing that over the past few years has been the Internet.  One of the problems with marketing yourself on the Internet, however, is how do you get people to come to you?  The void of the Internet is so vast, that finding an artist whose sound is something that matches your musical taste is even more difficult than finding a needle in a haystack! 

So, it is a beautiful thing to see an artist actually breaking into the Billboard charts catapulted in large part by her success on the Internet, particularly her MySpace page.  Her success story gives hope to every artist whose desire is to put out a record, throw it up on the Internet, and have people flock to listen.

Enter Indianapolis, Indiana singer-songwriter Sally Anthony whose  “eTeam” of over 125,000 fans, including over 40,000 friends on MySpace, helped propel Anthony to stardom.  Thanks in largem_6c31918cf33c79bad2c07905f6783a30 part to that online community, Anthony’s first album, Vent, released in 2004, sold over 175,000 physical and digital copies.  Two releases from that album spent months on the R&R pop chart.

Her new album, Goodbye, released October 23rd, has already sold 14,000 digital copies.  It has already reached the top of the pop charts at walmart.com, FYE Digital and iTunes and on November 7th landed at No. 9 on the Billboard Heatseekers Chart.  The album is being distributed by her company, Gracie Productions, through Imperial Records/EMI.

Anthony is succeeding because she is treating the music industry as broader than just the radio promoted, hit-driven, plastic disc business the major labels seem stuck in.  She is viewing the music industry as an entire package, generating buzz wherever she can, from the ground up rather than from the top down.

I predict that we will start to see more and more of these types  of breakthrough artist as the popularity of YouTube, Facebook, MySpace and other online communities grow in popularity and as the pioneers of the Internet find more creative ways to index diverse product, match it to the tastes and purchasing patterns of Internet users, and make recommendations – sites such as  LivePlasma, Pandora, Audiobaba, Last.fm, MyStrands and, of course, Amazon,

As radio fades into the annals of history alongside the monolithic corporate conglomerates that are r060719_Books_longtailChartecord labels, these innovative types of indexing sites will help those artists in the deep dark recesses of the “long tail”  find an audience for their music.  By the way, if you haven’t read Chris Anderson’s treatise on this subject, The Long Tail, buy a copy and dissect it now.   The long tail consists of that product that is not in the mainstream — not on the shelves of Wal-mart — but product that is still sought after and purchased by people.  Maybe it’s only ten people per month, but people still want and buy it.  It is the millions of artist that fly below the radar of the “hit-driven majors.”  These are the artists who can benefit from the exposure the Internet can provide.

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Vanderbilt Students to receive a round of RIAA Letters

vuLogo2Fueled in part by its success in Virgin v. Thomas, the RIAA (on behalf of EMI Music, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group) issued a new round of pre-litigation letters to college students across the country Thursday of last week. This is its ninth such round of letters since beginning the campaign against downloaders nearly two years ago. This round included letters to 32 students at Nashville’s prestigious Vanderbilt University. Vanderbilt received the third greatest quantity of letters in this round, behind University of Southern Florida, with 43 and Southern California with 37.

In addition to those three institutions, the RIAA also sent letters to these 16 schools (quantity in parentheses): Drexel University (17 pre-litigation settlement letters), Indiana University (23), Northern Illinois University (25), Occidental College (19), State University of New York at Morrisville (18), Texas Christian University (20), Tufts University (15), University of Alabama (14), University of California, Berkeley (19), University of Delaware (18), University of Georgia (13), University of Iowa (18), University of Michigan – Ann Arbor (20), University of Nebraska-Lincoln (13), University of New Hampshire (30), University of New Mexico (17).

As with the more than 3,500 letters previously sent to college students at other schools, the letters gives students the opportunity to resolve copyright infringement claims against them at a discounted settlement rate before the threatened lawsuit is filed against them. The letters are accompanied by instructions to the university administrators to forward the letter to the appropriate individuals the give them the opportunity to promptly resolve the matter and avoid a lawsuit.  So far, the RIAA has filed over 26,000 lawsuits, with more than 8,000 students settling out of court at for average penalty of $3,000 each.

While most unversities simply forward the letters as requested by the RIAA, some, like the University of Kansas, have taken the stance that they are not a legal agent of the RIAA and that forwarding the letter would be a violation of the students’ privacy and the Digital Millnnium Copyright Act (the “DMCA”).  They refuse to relase information with a court order or subpoena legally requiring them to do so.  The safe harbor provision of the DMCA protects Internet service providers, in this case the University, from liability for users’ online activity if they immediately remove or disable a access to identified material in a copyright infringement complaint.

It is uncertain what position Vanderbilt University will take with regard to this issue.

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