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.
Got Something to say? Are You a Musician, Artist, or Person with an opinion about the Music industry, music downloads, contracts or royalties? Are You concerned about the RIAA and other industries' assault on our cyber-Freedoms? Copyright and Intellectual Property law? Well?
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.
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.
In a story headlined "Studios not pirates are the digital rights challenge, says IBC panel" David Benjamin, a Paris-based freelance writer, reports a few interesting quotes at a recent contentious meeting of the International Broadcasting Convention (IBC) convened in Amsterdam.
From a Video-on-Demand company: "Technology is not the problem. It's the content cartel!"
From Microsoft: ""Yes, the Internet is a source of leakage. But there is no legitimate content source...Why not just flood the peer-to-peer services with legitimate content? ...Instead of fighting it, why not just embrace it?"
The Video-on-Demand services companies are worried over the current MPAA/RIAA assault on technology. To hear them tell it, Hollywood's reluctance to the release the best movies in digital form, it's draconian demand of 60 percent of revenue from all use of its content, is a formula for a "digital train wreck."
This withholding of content from legitimate online services threatens some of the very businesses trying to uphold the industry's outdated business model, i.e. license content and let MPAA/RIAA, ASCAP and BMI handle the royalty payments, which are based on sales statistics rather than actual sales or usage.
Microsoft observed that there currently is no "legitimate content source" for digital movies.
Note: This article has it's own page for linking, which includes some introductory words from the Publisher. Just Click on the image (new window) or URL link above (same window). -g.moss
Date: Fri, 9 Feb 1996 17:16:35 +0100 To: email@example.com From: John Perry Barlow Subject: A Cyberspace Independence Declaration
Yesterday, that great invertebrate in the White House signed into the law the Telecom "Reform" Act of 1996, while Tipper Gore took digital photographs of the proceedings to be included in a book called "24 Hours in Cyberspace."
I had also been asked to participate in the creation of this book by writing something appropriate to the moment. Given the atrocity that this legislation would seek to inflict on the Net, I decided it was as good a time as any to dump some tea in the virtual harbor.
After all, the Telecom "Reform" Act, passed in the Senate with only 5 dissenting votes, makes it unlawful, and punishable by a $250,000 to say "shit" online. Or, for that matter, to say any of the other 7 dirty words prohibited in broadcast media. Or to discuss abortion openly. Or to talk about any bodily function in any but the most clinical terms.
It attempts to place more restrictive constraints on the conversation in Cyberspace than presently exist in the Senate cafeteria, where I have dined and heard colorful indecencies spoken by United States senators on every occasion I did.
This bill was enacted upon us by people who haven't the slightest idea who we are or where our conversation is being conducted. It is, as my good friend and Wired Editor Louis Rossetto put it, as though "the illiterate could tell you what to read."
Well, fuck them.
Or, more to the point, let us now take our leave of them. They have declared war on Cyberspace. Let us show them how cunning, baffling, and powerful we can be in our own defense.
I have written something (with characteristic grandiosity) that I hope will become one of many means to this end. If you find it useful, I hope you will pass it on as widely as possible. You can leave my name off it if you like, because I don't care about the credit. I really don't.
But I do hope this cry will echo across Cyberspace, changing and growing and self-replicating, until it becomes a great shout equal to the idiocy they have just inflicted upon us.
I give you...
A Declaration of the Independence of Cyberspace
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract . This governance will arise according to the conditions of our world, not yours. Our world is different.
Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.
We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.
We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.
Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter, There is no matter here.
Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge . Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.
In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, DeToqueville, and Brandeis. These dreams must now be born anew in us.
You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.
In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace. These may keep out the contagion for a small time, but they will not work in a world that will soon be blanketed in bit-bearing media.
Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.
These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts.
We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.
Davos, Switzerland February 8, 1996
**************************************************************** John Perry Barlow, Cognitive Dissident Co-Founder, Electronic Frontier Foundation