position paper

21 April 2004, 6:50 pm

Over the past few years I’ve become increasingly interested in copyright and intellectual property law.

My interest was sparked by discussions that raged across multiple venues during the original heyday of Napster. Lots of apparently contradictory claims were flying:

  • Napster is screwing the artists.
  • The record companies are screwing the artists.
  • Fans are saving the artists.
  • Napster is saving the artists.
  • Fans are screwing the artists.
  • Artists are screwing the fans.

And so on.

At the time, I considered myself a musical artist. There was a certain amount of hubris in this: my band was at the very bottom of the food chain, with almost no radio play and very few sales. On the other hand, most of the musical artists are at the bottom of the food chain: I’ve seen statistics that claim only about 7% of albums released sell more than 1,000 copies.

One of the things I found extremely frustrating was people attemtping to tell me what I thought, or what I should think, about the issues. If I’m sure of anything, it’s that there is no consensus on what artists want, most especially if you include the majority of artists rather than just the artists who make the majority of the money.

By mid-August 2002 I was getting tired of repeating myself. I tried to create coherent position statement, with the idea that I could refer people to it, rather than retype the same things over and over again.

I came up with this. I annotated it in April 2004 both to clarify it and to reflect changes in my thinking since I wrote the original version.

pro-copyright;
That is, I think the whole idea of intellectual property law is not obviated by new technologies.
pro-fair use doctrine and preservation of fair use access;
More than ever
pro-intellectual property law reform;
Just right now, the burning issue for me is patent more than copyright, but I think the whole ball-of-IP-wax (copyright, patent, trademark) is in need of rework. I think IP laws should:

  • Encourage innovation and creativity
  • Reward innovators and reward creators

But I think the first goal is more important than the second; patents are often used to prevent the competition from innovating. And I think the fact that copyright- and patent-holders tend to be corporate entities rather than individuals dilutes the intent of the second goal.
anti-copyright term extensions (pro term reductions);
A lot of people who aren’t necessarily paranoid think that the goal of copyright term extensions is specifically to prevent Disney’s allmighty mouse from entering the public domain. I have a hard time seeing why copyright term extensions would ever be in the public interest. It is easy to see why they are in corporate interests.
anti-DMCA S.1201 (the anti-circumvention provision);
Perhaps the most controversial section within the very controversial Digital Millenium Copyright Act, 1201 makes it criminal to “circumvent a technological measure that effectively controls access” to a copyrighted work. That means, for example, that trying to play certain media files with the device or software of your choice may be a criminal act.
anti-DRM schema that restrict the movement or playback of copyrighted material (not necessarily opposed to those that merely track);
Too soft. I’m opposed to DRM schema that track, too, because that’s unacceptably intrusive.
Nearly two years later DRM still isn’t a household word, somewhat to my amazement.
Basically, DRM is a means of letting documents specify what you can and can’t do with them. For example, people who purchase music downloads from Apple’s iTunes Music Store accept restrictions on the number of devices with which they can share those files, and the software they can use to play them. Attempting to defeat those restrictions is a violation of DMCA Section 1201.
But although that’s annoying enough, it’s kid stuff compared to what’s coming if people don’t get together to stop it. In this alphabet soup and corporate speak lurk things that George Orwell could not have dreamt: Palladium, NGSCB, TCPA

vehemently opposed to audible watermarking;
One of the earlier ideas for restricting the movement of digital music files was to “mark” the files, either by “notching” out certain frequencies, or using some sort of cyclic modification on part of the file. Theoretically, this was supposed to be inaudible to humans. In practice, if cheap speakers reproduce the watermark correctly, almost by definition, it is human-audible. I’m still opposed, but I think most people have figured out that this is undesirable. There are some companies who think they can reliably identify songs by analyzing at a sort of “audio fingerprint”; that’s different, (although I think they’re nuts).
pro-recording-industry-contract reform;
I highly recommend Moses Avalon’s book Confessions of a Record Producer, for all that some of his arithmetic is shaky. Basically, there are four main problems with the “standard” record contract.

  1. The record company winds up owning the copyright on the recording; it takes a long time to revert to the artist (and may never revert). There’s a closely related issue of whether albums should really qualify as “work for hire.”
  2. The record company covers its expenses and begins to make a profit substantially before the artist has repaid (recouped) the expenses the artist owes the record company.
  3. The record companies artificially inflate the production budgets. This increases the debt the artist has to repay (increases the artist’s risk and exacerbates #2).
  4. The record companies accounting processes are consistently found to be deficient when audited, in a way that suggests that dishonesty in reporting is systemic.


anti-”independent promoter”
Payola by any other name still stinks.
pro-indie artist/anti-”gatekeeper”
As I type this, I’m playing Exotic Fever’s With Literacy and Justice for All compilation, which as fine a record as any to represent my enduring love for artists who make music outside the mass commercial system. It’s got gentle acoustic numbers and raging hardcore/screamo blasts. It’s only unity is of conviction, not of market demographic. It’s the kind of music that could never make through the gatekeepers. (When I say gatekeepers, I mean: Clear Channel. And its ilk.) Who decides what you hear on the radio? What motivates those decision makers? More importantly, why should you accept those choices?
anti-unduly burdensome performance royalty requirements for streaming web delivery;
See, all this stuff is related. “Terrestrial” radio (which is, weirdly, what you call the stuff that comes through the airwaves) is exempt from paying performance royalties in the US.
One of the side effects of the first flowering of Internet “radio” was that the music deemed acceptable by the gatekeepers was not coming out on top — people were finding and listening to, even choosing lots of great indie music. So legislative pressure was applied to create royalty structures that would effectively bankrupt independent Internet “broadcasters” and silence those pesky outsider voices. Woops, sorry, that was the “paranoid conspiracy theorist” version. What’s the “reasonable” version? Oh, yeah, we gotta “monetize” the Internet. Uh huh.
(This is an ongoing fight.)

profoundly unsatisfied by 128K mp3 audio quality.
OK, the new encoders are better than the old ones. I can still tell the difference, or rather, the difffferenssssse, but some fashionable production/mastering techniques sound almost as bad as poor MP3 encoding to start with. The good news is that eMusic’s VBR MP3s sound pretty great.

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