| The current decline in music sales has more to do with the declining quality of the product than with internet file swapping. |
| Music downloading on the internet may seem on the surface to be a minor issue when compared to some of the others in this essay. However, it merges with the other topics discussed here in that it provides a concrete example of how corporate America strives to retain control over the various forms of information dissemination and the control of the marketplace of ideas. For many years pop music enthusiasts have used commercially available tape recorders, the most successful format being the tape cassette, to share copies of recorded music with friends. Even though the practice was small and constrained by the necessity of physically copying and exchanging these tapes, the procedure caught the attention of the recording industry. The industry advocated and achieved the implementation of a “taping tax” that provided for a fee to be paid to the recording industry each time a blank cassette was purchased, regardless of any assurance that what was recorded on that tape was copyrighted by the recording industry. A confluence of technologies in the late 1990’s provided with the ability to share music on a massive scale. The ability to convert digitally encoded music from compact discs into computer files, combined with the ability to share those files via the internet created a new mechanism for distributing unauthorized copies of duplicated materials. In 1999, Shawn Fanning, a 19-year-old freshman at Northeastern University in Boston introduced a software application that allowed the indexing of music files on any users computer that was logged onto the site, which he called Napster. Suddenly the exchanging of music files was no longer a person-to-person enterprise. It was now a global “swap meet.” Although the recording industry, through various court challenges, managed to shut the service down, other services that used loopholes in the laws soon appeared to take its place. It soon became obvious that music swapping via the internet would be a constant presence in the realm of music distribution for the foreseeable future. The recording industry claims that it opposes this type of technology because it allows consumers to acquire recorded music without paying royalties. Indeed there is a huge difference in a profit margin if a million people purchase a recorded product, as opposed to one person purchasing it and making it available for free to a million others. Celebrity recording artists have been trotted out by the recording industry and portrayed as the victims in this dispute in the hopes that music consumers would be sympathetic to the performers that they admire. It is important to remember that these performers are just the tip of the recording industry iceberg. Beneath them in the pyramid are the legions of recording studio employees, CD manufacturing plant workers, distributors, retailers, marketing and sales people, promoters, accountants, lawyers, executives, and other supplementary workers. Each recording artist supports a stable of industry workers who toil in warehouses, record stores, packing plants, offices and similar ancillary work places. A slump in CD sales means layoffs. Is music swapping on the internet cheating? Probably. Is it illegal? Likely. Is it inevitable? Certainly. But the repercussions of music exchanging programs go far beyond whether today’s recording artists are fully compensated for their product. With the introduction of electric instruments in the late 1950s, particularly the electric guitar by pioneers such as Les Paul and Leo Fender, the basic structure of the pop combo changed. No longer did pop music require a large ensemble of horn and woodwind players led by a conductor and an arranger. Suddenly a combo of three or four musicians using electric amplification could improvise their way through simplistic arrangements and entertain a large audience without the need for a large ensemble. Mass production of these inexpensive and easy to play instruments led to an explosion in the number of musical acts. This phenomenon turned the music industry upside down. Soon towns and cites of every size boasted a cadre of fledgling bands, some of them very good. Within a few years, the supply of viable musical entities substantially outpaced the demand, even though the demand was large and rapidly expanding. Who would decide which musicians would receive the exposure necessary to develop a career in the music business? As rock music established itself as the primary musical category, the recording industry established itself as the distribution system for the new musical form. For a musician, the pipeline from the rehearsal studio to the global stage went through the bottleneck of the recording industry. Today the recording industry is controlled by just five major corporations; BMG, Universal, EMI, Warner Record Group, and Sony Music. For a musician to reach a mass market, he/she must go through one of these five corporate giants. (Interestingly, it was Universal that argued before the Supreme Court in a 1984 case that Sony’s new consumer product, the VCR, should be banned because, among other things, it would allow for the unauthorized duplication of movies.) The advent of inexpensive digital recording equipment combined with the ease of mass distribution via the internet gives individual musicians the ability to sidestep the bottleneck and circumvent the recording industry. Professional quality recordings can be produced at home or in small inexpensive studios using the latest digital recording technology. Digital copies can be made available to the general public using a web server that the average musical group can afford to purchase or lease. The consequences to the lock on music distribution channels are enormous. The real threat to the recording industry is not the simple loss of a manageable percentage of its revenue from file swapping. All of the technological components are now in place to break the stranglehold that the recording industry has benefited from for decades over music promotion and distribution. Every shriek from the recording industry proclaiming their right to simply collect royalties for their products should be interpreted as a grasp at holding onto the power that they have wielded over the musical community for decades. Soon, some musician that no one has yet heard of who has the musical ability, the knack for promotion and the capital to invest will combine all of these apparatus to launch a successful career without the aid of one of these corporations. In doing so, he/she will lay the groundwork for a new method of reaching a mass audience. As hundreds and then thousands imitate this technique on their road to success, circumventing the recording industry in the process, an gigantic industry comprised of consolidated corporations will be reduced to a minor player in the dissemination of creative ideas. Good riddance. But this issue goes beyond even the music industry. The real overriding issue here is the distribution of copyrighted materials. For example, if you read a newspaper article that you think would be of interest to an associate and you fax that article to your associate, your associate has gained access to that copyrighted item without paying a fee to the owner. Is that “fair use” of that material? Most reasonable people would agree that you are within your rights sharing that item in such a way. What if you read the article to someone over the phone? A part of the article? Again, most reasonable people would agree that you are within your rights to share that item in ways such as these. What if you bulk fax the article to a mailing list? What if you publish it on your web site? Obviously there has to be a clear dividing line between “fair use” and copyright infringement. But where is that line? The standard should be that in order to violate a copyright, the user of that item must stand to directly derive income from distributing the work. If a consumer purchases a CD and makes a copy to play in the car, the law has upheld that that consumer is within his rights. What if he gives that copy to a friend? The consumer does not stand to derive income for that transfer, so by our criteria there is no copyright violation. If the consumer makes 500 copies of that CD and sells them on consignment at a local convenience store, then that individual stands to directly derive income and therefore violates the copyright and is liable for the infringement according to our definition. There is a loophole in this criteria. Entities may choose to publish copyrighted materials on a vast scale with no conduit with which to derive income from the distribution. It is assumed that violations of this nature would be rare since publication will inherently involve costs and this scenario includes no way for the violator to recoup those costs. Still, discounting the lack of financial motivation, this situation could occur. Provisions should be made for such an operation to be challenged by copyright holders. |
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