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As the Rolling Stones began their tour while welching on the more than quarter of a million dollar deal they made with my Friend, I started this e-Blogazine journal to document some of my experience of the fallout, and to create a forum for discussion and resources to reform the Music Industry. May Artists, Musicians, and Free People everywhere find it useful.


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wSunday, September 22, 2002

First Amendment := P2P




MusicPundit Debate on P2P Musician Opportunity


Recently I was in a discussion over at MusicPundit about Napster's demise.
I let out a pretty good rant, published in it's entirety below.
What got me going was the following comment:

"So, the shuttering of Napster has left independent artists with no way to make
music, no way to promote it, no way to sell it? ... You're apparently 17, and thus are
forgiven your naivete in this realm. Reynolds and his fellow 'The RIAA Sucks' adults
don't have that excuse. There are legitimate issues of copyright to be sorted out --
even down to the very basic fundamentals -- before one can claim that copyright holders
are morally bankrupt for protecting what is now legally recognized as their property."


Dale Stevenson (from whom we may hear more later) had a less vitriolic and more
civil response than my own:

"While the death of Napter hasn't completely invalidated all avenues of self-promotion
of independent artists, it has limited those available.

"The question I present to you is if the major labels actually have a moral right to hold the
copyrights of the music that they produce. They don't write it, they don't play it. They only
provide the venture capital to make the album. Capital that is legally required of the artist to pay back.

"The RIAA claims that they are protecting the artists interests in cracking down on copyright violations.

"The most that artists get after everyone elses cut of album sales is 10% of MSRP. The most!

"Until you gather more of the facts of the true issues involved, I suggest that you refrain
from slinging insults in other directions."

To which the original commenter replied:

"Of course labels have a "moral right" to hold music copyrights -- if those
rights have been assigned to them by the creator(s) of the intellectual property.

"If I write a song, and sign a contract that hands the rights to someone else,
what's immoral about that? Nothing.

"Similarly, if I make an album and sign a contract that gives me a paltry 0.0003%
cut of its revenue, nothing immoral has taken place. It might indicate I'm a lousy
businessman, but it doesn't make anybody evil.

"It really is naive to romanticize Napster -- or at least its facility for copyright
infringement -- as some bastion of Glory, Truth and Right."

At this point, I began chafing at the equation of "legal" and "moral" "right".
Because Legal Rights, and what is morally "right" often bear little relation to one another.
Moreover, with the bastardisation of Law perpetrated by the RIAA/MPAA and Congress
through the passage of the DMCA, UCITA, and related intellectual property legislation
since 1996, it gets less so every day. That is why Stoned Out Loud exists.

Anyway, Dale held his own, offering:

"[quoting]>Of course labels have a "moral right" to hold music copyrights --
if those rights have been assigned to them by the creator(s) of the intellectual
property.[end quoting]

"That would be "legal right" to which you are refering.

"And those contracts to which you are refering are legally coerced from 'letters of intent'.

"The letters of intent have no terms other than that each party agree to sign a contract
of mutual agreement, and that neither party may enter a contract with a third party with
regards to publication, production, and/or distrobution of material contained in the as
yet unwritten contract.

"Suppose I told you I could give you a job at my company making $100,000 per year.
You agreed to come to an interview, but before you could enter you had to sign a
letter of intent.

"You could at that point walk away from the job and go look for a different one, or
you could sign it and go into the interview.

"You are told that you may take a job for $15,000 per year. You say "no thanks"
and leave. On the way out you are reminded of your "letter of intent" and are told
that you may not interview for any other job.

"That's moral? That's right?

"That is how the record companies recruit new music.

"Napster, in the beginning, was illegally facilitating infringement of copyrights held by
the major record labels. Later, the company was attempting to do just at the labels
asked: Stop distributing THEIR music. So what about the rest of the music that was
legitimately traded?

"Unless you can offer a solution to the problem of the ill informed artists getting clearly
taken advantage of, you can do nothing put spout rhetoric.

"And if you say that it just required education on the part of the artists themselves,
then you, clearly, would be the myopic one."

To which I thought, "Bravo." But I still felt there were some vital issues that had not
been addressed. Mainly, the stealth assault that has been - is being - made on the
First Amendment. So, I cut loose:

I agree with the previous poster that 'there are legitimate copyright issues to be sorted out.'
And that's where my agreement ends. I do agree with the comments of Dale Stevenson,
which I found reasonable and well articulated. After I rant a bit, I want to check out
Jeff Cooper's Site, which Eric recommended.

A big part of problem, as I see it, is that corporations have enjoyed the legal fiction
that they are "persons" under the law. This is and has been the excuse for the erosion
of Individual and Civil Rights in this country for a long time.Another part of the problem
is in the legal language "work for hire." Contracts that contain this language should be
nullified, in my humble opinion, when they are used - with perfectly legitimate legal
precedent behind them - to screw People (not just Artists, but Consultants and others as well)
out of the product of their work. It is an ongoing peonisation of the working man.

For the Producer of Value, "work for hire" usually amounts to...seems in practice
to be defined under the law as...total and complete assignment of all rights irrevocably
in perpetuity to the purchaser. Furthermore, it often amounts to and / or is combined
with (in the music industry) indentured servitude.

If You don't believe me, read a recording contract, read the UCITA legislation, the DMCA,
and then go read "Courtney does the Math" at Salon. I linked it from
http://www.stoned-out-loud.com
in the "Articles of Note" box.

While You're there, it might be good to look at the other articles written by
working Musicians as well, Janis Ian's, and Steve Albini's "The Problem with Music."

So I have a problem, not with "work for hire" per se, but with how it has been applied
in the Music and IT staffing industries. For starters.

Another part of the problem is Copyright law. The manner in which Congress has allowed
the Industy lobbies to write legislation in exchange for campaign contributions has polluted
the very concept of law itself, and the DMCA is a good example. It is an instance of the
original intent of protecting intellectual property rights being turned inside-out and on it's head,
converted into a tool for the legally fictitious "person" of the corporation to subjugate and rob the
real living breathing creatively producing Person in the populace of their very means of
livelihood, and the fruits of their labors. (brings to my mind the title of a great Kurt
Vonnegut, Jr. essay "In a manner that would shame God himself.")

Next, is the question of innovation, the freedom to do it, and the Freedom of Speech
and Assembly guaranteed under the First Amendment of the United States of America's
Bill of Rights. The real issue behind the RIAA/Napster case is the First Amendment,
and our Freedom to peacefully assemble and share our ideas and music together in this very
large virtual room that is the internet;
Mankind's collective Living Room.

That's what John Perry Barlow was talking about in his

"Napster and the Death of the Music Industry."


I wrote 2 articles at osOpinion speaking to these very points.

The first is sort of a cyber rap called

"We're Goin' BoomBoomBoom"
and can be accessed at


http://www.osopinion.com/Opinions/DavidManchester/DavidManchester6.html
;

and the other is called

"The Right to Bear Silicon - Dismounted Drill Tactics and Real Operating Systems"
at


http://www.osopinion.com/Opinions/DavidManchester/DavidManchester8.html
.

I did a couple other pieces there that bear on these issues, also.



"Abolished Copyright will Kill Open Source"
at


http://www.osopinion.com/Opinions/DavidManchester/DavidManchester4.html
,

and


"First Amendment, Captive Markets: P2P's Real Issues"


at


http://www.osopinion.com/Opinions/DavidManchester/DavidManchester9.html
.

The problem the RIAA/MPAA has (and the IT staffing industry, among others, as well) is that
they are used to riding the Artists and Producers of Value like cattle, and want to enlarge their
Yoke to include the rest of us. *And it ain't gonna happen.*

They can buy all the Congressmen they like, pass as many laws as they like...bottom line is,
if they take the Law down that road, it is the system of laws and jurisprudence that will suffer
... as it is suffering now the loss of respect and credibility Judge Patel's and other's goo-headed
decisions have engendered.

When the law deserts the People, the People go elsewhere. ("...and when laws are
outlawed, only outlaws will have laws." - kidding)

This isn't an opinion, just an observation of Human Nature.

So, what p2p needs to do is create a sharing application that incorporates
micropayment, while keeping the Artist in charge of his own work. Anything less
isn't worthy of pursuit, imo. It's time we, the People, reclaim some lost ground.

Yowza. Feels good to get a good rant out now and then! :-|

So, in summary, Sir, shame on You for Your age-ist patronising of our Hostess
("You're apparently 17, and thus are forgiven your naivete in this realm"). Don't go handing
me any ""The RIAA Sucks" adults don't have that excuse". This RIAA Sucks adult, and legions
of Artists and Producers, and Human Beings who have inaliable Rights endowed by their Creator
have plenty of excuse.

And one can, in point of fact, "claim that copyright holders are morally bankrupt for
protecting what is now legally recognized as their property", when one opens one's
eyes to the context in which those copyrights were acquired: deceptively and/or coercively
obtained "work for hire" contracts under which the Artists/Producers were required to hand
over those copyrights.

Oh, yeah. Perfectly legal, legal as Church on Sunday. And that makes it less reprehensible,
uh, how? It doesn't.

So, yes Sir. Morally Bankrupt. So, how to address it in a "government of Laws and not of Men?"

All we have to do now is work the miracle of real campaign finance reform and elect
representatives that will do so, instead of being puppets of their corporate paymasters.

That, and create a p2p file-sharing micropayments system that is GPL'd.

-fwiw
dcm

Posted by
David Manchester at September 9, 2002 09:47 AM



posted by gathering moss at 12:23 AM





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