Napster and the decline of copyright–part 3

All of this talk of Napster brings up some questions: What is legitimate use?

Making MP3s from CDs you already own is legal, just like making tapes from CDs you own is legal. It’s difficult to say that downloading MP3s made from CDs you already own would be illegal, as you can just make the MP3s yourself. For some people, this is preferable, as encoding MP3s takes a good deal of time on slower systems. However, one can never be certain of the quality of the MP3s online–the condition of the CD, the quality of the source drive, and the quality of the encoder come into play. Those who aren’t audiophiles probably prefer to just download the MP3s, but the existence of the files understandably makes record companies and artists nervous.

So Napster isn’t just out-and-out theft. (Just almost.)

But some tracks on Napster are legal as well. The right to make and distribute live bootleg recordings has been upheld by courts. And some artists, notably The Grateful Dead and, more recently, Phish and The Dave Matthews Band, have given bootleggers their blessing. Other artists aren’t so keen on being bootlegged, but aside from trying to keep recording devices out of their concerts, there isn’t much they can do about it. Such recordings on Napster are legal, but determining whether such a track is what it claims to be can be difficult. I once downloaded a supposed live version of ‘Til Tuesday’s “Believed You Were Lucky,” only to find it was the studio recording with reverb added–clearly a violation of copyright unless you happen to own the original. Many of the live recordings I’ve downloaded from likes of Joe Jackson, Peter Gabriel, and Social Distortion turned out to be from commercially available live albums, some of which I owned, and some of which I didn’t.

And occasionally an artist will release a recording on Napster for promotional purposes–or to hack off their record label. Veteran alternative supergroup Smashing Pumpkins released an album’s worth of unreleased material on Napster last year and said it was their last album.

But policing content on Napster and other peer-to-peer sharing plans is difficult. It’s not a total impossibility, but file renaming can make it much easier for illegal content to get through. Digital fingerprinting would be harder to circumvent, but that, too, could be done, and implementation is extremely difficult. The difficulty of such measures makes me wonder why Napster came into being–it’s not a good business model. Part of me wonders if Napster’s creators just didn’t care whether they were breaking the law or aiding others in breaking the law. While there are legal uses for Napster, I suspect few people are confining themselves to the legal uses.

There are plenty of people calling for copyright reform, and that’s not unreasonable. Under current law, copyrights can be extended beyond the material’s original audience’s lifetime. Under the original law, copyrights lasted for 26 years, renewable for another 26, for a total of 52 years. So that time frame won’t prevent Michael Jackson and Paul McCartney from making a living. But under that law, the pop songs from 1949 would now be freely distributable, and could be performed without royalties. The beloved early rock’n’roll tunes from the 1950s would come available this decade. For those songs, Napster wouldn’t be an issue.

Content publishers seem to be more worried about current copyright provisions than content creators are. Sci-Fi author Jerry Pournelle has stated numerous times he had no problem with the original law, when he was writing his early works under it.

Reverting back to the old law is probably the best compromise. People wanting to freeload will be able to do so, but they’ll have to wait 52 (or if they’re lucky, 26) years. Those who produce and distribute content will still be able to make a living doing so–the majority of people won’t be willing to wait all those years. Abandoned property won’t be an issue either–once it reaches 26 years of age, if it’s not renewed, it’s fair game.

Unfortunately, the copyright law debate is lost in all the Napster rhetoric. And that, I fear, is possibly the greatest casualty of the battle. But it’s no silver bullet either. It increases the pool of material that’s fair game for free distribution, but it doesn’t solve the problem of outright piracy of recent material.

MP3 has plenty of legitimate uses, for the consumer as a matter of convenience and for copyright holders as a matter of promotion, and the courts have upheld those legitimate uses. MP3 usage tends to be a fall guy for all the record industry’s problems, but the record industry had problems before the MP3 phenomenon became rampant. As Andy Breslau said, there are so many avenues of entertainment available today, it’s perfectly natural that the recording industry’s share of the entertainment pie would shrink, just like TV networks’ share is in decline. If and when Napster is forced to close its doors, the industry’s problems won’t just disappear, and the illegal copying of MP3s will almost certainly continue, though possibly not on such a large scale. There’s very little, if anything, the industry can do to stop MP3 swapping through Usenet newsgroups and IRC chatrooms, which was where the MP3 phenomenon began in the first place.

I expect the use of MP3 for promotional purposes to continue, and services such as MP3.com will take advantage of it legally for years to come. But services like Napster, which provide virtually anything you want with no proof of ownership, are probably running on borrowed time, even though the industry is lying to itself about the true impact these services have.

Napster will be forced to shut down, the record industry will continue to make billions and artists won’t get their fair share, and the record industry will continue to complain their billions aren’t enough and blame MP3s or something else.

Part 1 in a series. Part 1 Part 2 Part 3

Napster and the decline of copyright–part 2

“Am I remiss in wanting to protect the possibility of recouping my losses from all those years ago?  In the wake of Aimee [Mann]’s deserved recognition, why shouldn’t I be able to at the least make back my money selling a `protected’ product?” Breslau asked. “And then, besides, Aimee, Doug Vargas and Michael Evans (the other former Snakes) could start seeing a couple dollars too?”

Napster hurts big record labels a little. But it hurts little record labels like Ambiguous Records, whose big star’s records are still sitting in Breslau’s basement after 19 years, even more. But what about the musicians themselves?

I asked Breslau about the typical musician’s plight. I’d heard Courtney Love’s assertions that she made less money than I make, but at that point Breslau seemed much more real, possibly more candid and, frankly, more interesting.

“Many musicians are poor and struggle their whole lives to stay above water. Those who have regular gigs either in orchestras, as jingle players, teaching, or as sidemen aren’t making what your insurance broker is,” Breslau said. “A great many folks who are involved with music drift in and out of making a living and eventually their day gig becomes the gig. The few, the proud, the multimillionaires represent a tiny, tiny few.  Probably the same percentage that pro hoop players represent as figured against all those who played junior high ball.”

Breslau mentioned a musician he’s working with. He’s 60 years old and has been playing 150 shows a year for the past 10 years, has a worldwide following and critical acclaim. Yet he’s having difficulty finding an apartment and health insurance he can afford, and the rigors of touring are starting to catch up with him.

I asked Breslau what he thought legitimate uses of Napster might be, if there were any. His response surprised me.

He cited Napster as potentially a distribution method, and certainly a marketing and promotional tool. “For some an unspooling, open ended library like Napster can be an incredible tool, a repository of discovery and a font of fun,” Breslau said. “Those who use it the most are students and those who have work-at-home gigs.”

Napster may replace some of the more traditional methods of introduction to new music, but not for him, at least not completely.

“For someone like me who has a demanding job, family and still wants to take advantage of sunshine, the editorial screen and organization that a music store (chain or boutique) or radio provides is still very useful. It guides me to what I’m interested in and when I’m frustrated in that search and still thirst after who knows what, I now have a new tool to seek my heart’s desire through–that’s to the good.

“I do miss great radio though–WFMU here in New York is a last outpost of dedicated eclecticism,” Breslau said. “When I was growing up in suburban Maryland, WGTB, Georgetown U’s station and the old WHFS – a truly great free-form commercial station in the day–were keys to whole other worlds for me.  The role of the `trusted guide’ is perhaps diminishing and I think that’s not a good thing. Plus the art of the segue is now almost completely relegated to clubs. Great segues can illuminate whole new contexts and resonances betwixt and between different songs and musics that you have to hear to get hip to.”

I asked Breslau if he thought Napster, as some claim, was responsible for the decline in record sales cited by large labels. He didn’t seem to buy it.

“I’d say the lion’s share of the change in market share comes from the explosion of entertainment options,” Breslau said. “It’s inevitable in a world of computers, gaming, cable television and myriad other entertainment outlets that the recorded music industry should see its share of the entertainment pie diminish. Competition has totally diffused viewing habits in visual mediums–there’s no reason music should be any different.”

Breslau’s words brought to mind a quote from an interview with U2’s Bono and The Edge I read in 1994 in Details magazine. At that point, MP3 was very much in its infancy, gigabyte hard drives cost $400 and recordable CD drives cost $1,000, a 28.8 kpbs dialup connection was state of the art, and the Internet wasn’t yet a commercial success. It seemed a different world from today, but like today, record sales were down. And The Edge, U2’s lead guitarist, observed, “More people are buying video games today than records.”

And Breslau disagreed with the common idea that today’s music isn’t as good as the music of earlier, more commercially successful days.

“The broader industry is guilty of saturation marketing for fewer and fewer products while releasing all kinds of stuff they never have any intention of supporting. There is lots of good music out there,” Breslau said. “I think its arguable that today’s scene is actually broader and more vital than 5 years ago, but the predominance of mega-hit mentality with little attention spent on building artist’s careers tends to push the obvious and two-dimensional stuff out there to the fore. The idea of a company supporting an artist who comes to maturity in craft and commerce by their third recording is almost quaint at this point.”

Some examples of bands who needed three or four albums to reach maturity: U2, Rush, and Bruce Springsteen–none of whom any record executive would mind having on a label. Impatience is hurting the industry in the long term at least as much as Napster.

And Breslau said it’s too early to judge Napster’s true impact.

“Young people, particularly those in college, are now pouring some of their musical curiosity/energy into downloading and not to listening to radio or scouring live venues or music stores for new gems,” Breslau said. We’re seeing some of this impact today.

“What will be interesting to see is the long term implications of these new habits,” Breslau continued. “College age is when life long musical appreciation and consumption habits get formed.”

I liked the way Breslau concluded one of our conversations. As one who has been hurt by Napster–how many people download Bark Along With the Young Snakes instead of buying it from him?–he still sees a potential for it to be a good thing overall, so long as the law is respected.

“Napster can be many positive things: a way to give your art to the world, a way to build an audience for your art, a test of commercial viability, a great marketing tool–but all of those are affirmative voluntary acts,” Breslau said. “What troubles me is when the technology becomes compulsory, when an individual’s choice and right is overwhelmed by another individual’s desire without regard to the other’s circumstance, goals or intention. If technology is to be liberating and empowering, its radical implications must be grounded in respect for an individual’s right to privacy and liberty, and, yes, that includes the exercise of property rights.”

Part 1 in a series. Part 1 Part 2 Part 3

Napster and the decline of copyright–part 1

When Napster’s technology first appeared in 1999, I was like everyone else. I didn’t understand all of its implications. All I saw was a potential venue to find new music.

The cool thing about writing a book and running a Web site is that your questions rarely go unanswered. Just post, and answers tend to find you as people connected to works you admire find you.

Just this thing happened to me, when I mentioned finding a gem on Napster: a complete copy of Bark Along with the Young Snakes, the first commercial recording by one of my heroes, Aimee Mann. I didn’t know where else I would be able to get a copy, so Napster, I concluded, was a good thing, as long as you were willing to let your conscience be your guide. But I’m getting ahead of myself.

People seem to assume that superstars make millions of dollars. Who really gets hurt when we pirate, say, a Matthew Sweet single that’s been running through our minds for the past seven years? He was a pretty big star, so he’s set for life, right? No one really cares… No one gets hurt.

That’s a pretty clear-cut case. It’s illegal, period. Now you can probably justify it in your own mind if it’s just part of a course of action–you hear a song on the radio, or a snippet of it, so you search online to try to find out the title and artist, you find some possible suspects, then you listen to the snippets online at CDNow or another record store. If that doesn’t click, then you hop onto Napster, download the possible suspects, listen, figure it out, and then buy it. If you do that, you’ve technically still broken the law, but not really the spirit of it. You got your music and the artist got the money.

But some things aren’t as clear-cut. Out-of-print stuff, for example, isn’t. If I covet Pale Divine’s Straight to Goodbye from 1990, I face a tough challenge. The album’s been out of print for seven or eight years and never was all that common. It’s fairly easy to find in the band’s hometown of St. Louis, assuming I’m willing to pay $40 for it. But when I pay some record dealer $40 for a used copy, it’s not like the band ever sees a dime of it. As far as the band is concerned, there’s no difference between me buying it and pirating it. As far as the record label is concerned, there’s no difference either, but given the way Atlantic Records treated Pale Divine, no St. Louisan who followed the band in the late 1980s and early 1990s would feel sorry for them.

It was when I cited another obscure record, Bark Along with the Young Snakes, from 1982, as another example, that the story got complicated. Andy Breslau, the producer and owner of the copyright, found me and asked some compelling questions.

While Bark Along with the Young Snakes is hard to find, it’s not really out of print. It’s somewhat sought after, being the first commercial record that Grammy, Oscar and Emmy nominee Aimee Mann sang on. But the story is pretty different from Atlantic Records and Pale Divine. Aimee Mann recorded with Ambiguous Records, which was an effort by Andy Breslau, a bluesman then based in Boston, to capture and preserve and disseminate some of the eclectic music coming out of Boston in the late 1970s and early 1980s. We’re all familiar with classic rock mainstays Boston, and the classic rock/new wave crossovers The Cars, but much of the other music coming out of that city at the time never really made it outside of Boston. Someone needed to take this untapped resource and use it, so why not Breslau?

Breslau was playing in a band called The Blues Astronauts, and he had close ties with a number of bands playing around Boston at the time. Plus he had a desire to learn about production and recording, so all the pieces were there.

So Breslau formed Ambiguous Records, and he recorded and produced three albums: Bark Along with the Young Snakes, by Aimee Mann’s band The Young Snakes, Singing the Children Over by Kath Bloom and Loren Mazzacane, and Darkworld by Dark.

The venture lasted 18 months. Independent record distributors, Breslau found, sometimes had difficulty paying him in a timely matter. The Young Snakes were getting popular, so the logical thing to do was to press more copies. Breslau did just that, but then The Young Snakes broke up, and Aimee Mann and her then-boyfriend Michael Hausmann formed `Til Tuesday. While `Til Tuesday made it big for a while, their success did nothing about the large number of unsold Young Snakes records in Breslau’s basement. And Breslau’s own band broke up. And then?

“I discovered the joys of making records in a different way,” Breslau said. He was working on a fourth record, titled Doing the Sugar, Too by Luther “Guitar Junior” Johnson.

“Luther had played with Muddy Waters for a number of years before and had moved to Boston and was playing around town.  It was then astonishing to me that he had no recording prospects at the time,” Breslau said. He took Johnson into the studio, struck a deal with his agent and the owner of a small blues label, and had a revelation.

“The whole process ended up being much more about the music for me,” Breslau said. “At that point continuing the label seemed too financially risky and really not as satisfying as the experience I had doing Luther’s record. For me it turned on this: If I could still produce the records I wanted to and not assume all the risk, end up hassling with distributors, doing all the PR work, sending out the copies to radio and critics etc. etc. etc., I could give up the label. Working with a small label as opposed to being a small label seemed the right direction for me to go.”

“Frankly, independent pop music is a very hard business,” Breslau said. “The world you compete in has at its upper limits multi-million dollar deals, multi-national corporations and huge ambition–some of it valid, a lot of it insufferably pretentious.”

All of this meant Ambiguous Records was history and mostly forgotten.

Then the MP3 phenomenon hit. While popular songs made up the bulk of the music available online, some die-hard fans connected turntables to their PCs, sampled their old records, and turned them into MP3s. In time, these rarities–Bark Along With The Young Snakes among them–showed up online.

“At a gut level, the experience of finding work you had a hand in `Napstered’ does feel as though someone is taking something without asking whether or not you want to give it away,” Breslau said.

Part 1 in a series. Part 1 Part 2 Part 3

12/28/2000

Mailbag: (I apologize for the error yesterday!)

VCache; Hacking setup

Sales of Optimizing Windows are surging. It’s been in the 3,000 range lately in sales rank at Amazon, which is much higher than it’s been in many months. The insane $7.50 asking price probably has something to do with it. Across the Big Pond, Amazon UK is sold out and has the book on order. Thanks to all who have ordered copies.

Linux experiments. I loaded up Mandrake 7.2 on my dual Celeron box yesterday. I’d forgotten how nice Linux can be compared to Windows: Here I was, recompiling a kernel, with a full KDE desktop running, and the system was using all of my 320 MB of RAM and not touching the swap space. That’s efficiency. I had a process monitor running, and no matter what I was doing, Linux was using just under 320 MB of RAM for something or another, adjusting its usage on the fly as my demands changed.

So, why was I recompiling a kernel? I wanted an all-Reiser setup, no ext2, for speed purposes, and Mandrake can’t do that out of the box. So I was compiling a kernel to include static ReiserFS support. Then I formatted a Reiser partition and copied the entire setup over to that new partition. But first I had to have a kernel that could speak Reiser from the get-go, which Mandrake’s provided kernel does not. Also, Mandrake’s kernel is Pentium-optimized, and I wanted i686 optimization since this is a Celeron system.

The process for getting an all-Reiser Mandrake setup isn’t too terribly hairy; I’ll probably do a writeup soon. I found some instructions for doing it with Red Hat 6.2, but they were either inaccurate or Mandrake changed some stuff. I was able to figure it out pretty easily, but then again, I was writing a book about Linux until recently so my opinion of the difficulty level probably doesn’t count. Copying 1.1 gigs of data over from the original ext2 filesystem over to the new Reiser filesystem takes a good bit of time though, especially if they reside on the same drive.

It’s pretty impressive how far Linux has come over the course of the past year. Mandrake 7 was good enough that I thought I might be able to get by without Windows. With Mandrake 7.2 I certainly could get by without it, except now I’m making my money off Windows so I won’t. But I could give my mom a Mandrake 7.2 box and she’d be happier with it than she is with the Mac she has at work. It would be far more stable, far faster, less expensive, and it can do everything she does with her Mac (read e-mail, browse the Web, and run WordPerfect). And its hardware use is certainly more prudent than Windows’ is. My dual Celeron-366 is a pretty good W2K box, but running Linux, especially with a custom kernel tuned to my hardware, it’s a really nice workstation. And it was cheap!

Christianity revisited. Hopefully yesterday’s post wasn’t universally read as criticism of Roman Catholicism as a whole. Many Lutherans are every bit as obsessed with traditionalism, hence my “Wait, therefore, for 15th-century Germans to come to you,” statement that I know will offend a number of people. (It’s good for them.)

There are dying churches in every denomination, sadly. And vibrant churches in all of them as well. Hopefully those who survive will be able to carry the torch when they need to.

Aimee Mann rarities. I have information from a reliable source that Aimee Mann’s first recording, Bark Along With the Young Snakes, released in 1982, is still available from the publisher, for $15, shipping included. You can contact him at eazyasabc@nospam.aka.com. (Remove the “nospam” from the address when e-mailing him.)

You bet I’ve already ordered my copy, though more for historical interest than anything else. She’s a much better songwriter at age 40 than she was at 22, but there’s a certain novelty to hearing her sing punk rock.

Sorry about yesterday’s mail. The file is nowhere to be found on this server. I’ll have to let Di know; hopefully it still exists somewhere on her computer.

Mailbag: (I apologize for the error yesterday!)

VCache; Hacking setup

If you can’t buy it, is it legal to copy?

3/29/00
Here’s a big, hairy question:

From: Francisco Garcia Maceda
Subject: Napster
To: Dave Farquhar

I have also been playing around with Napster for a couple of days and as you have seen there are a couple of rough edges still in the design and implementation. However, I think this is going to grow to something bigger and probably very different from the original implementation. There is already Wrapster, which allows you to “wrap” files, images, videos, programs, etc. in MP3 headers so you can exchange this “wraps” as if they were actual MP3’s. We’ll see.

The other day I was talking to a friend that made some research into copyright law both in the US and locally (Mexico). It appears that in both countries you can copy ANY copyrighted material that is out of print or distribution as long as you do not redistribute it or profit from it. This could be very important for people that don’t want to encourage piracy but at the same time is looking for some old tunes/books/etc. that are impossible to obtain today since they have been out of print for years/decades. Maybe you or one of your readers could shed some light in this topic regarding copyright law in the US and even in the EU?

Francisco Garcia Maceda

My understanding is that copyright law makes no provisions for material that’s in print or out of print, and until the copyright holder says it’s OK to freely copy something, freely copying it is illegal.

Tracking down the copyright holder can be a real pain. I wrote Optimizing Windows, but I don’t hold the copyright on it. If O’Reilly takes the book out of print, that doesn’t mean people can freely copy it. And in the case of my contract, O’Reilly retains the copyright, so you can’t get my permission to copy it–because I can’t give it. Sometimes the rights revert back to the author, but only the publisher and author can generally answer that question.

Those Young Snakes tunes I was referring to are a case point. Aimee Mann doesn’t own the copyrights on those, so she can’t give permission to freely copy them. She’s toyed with the idea of buying back the rights, but that’s never happened. So, technically, yes, by owning those MP3s, I’m breaking the law. Whether anyone cares is another question. Since no one’s making money off this 20-year-old EP that’s been out of print for probably 18 or 19 years, probably not. As Pournelle says, you have to let your conscience be your guide. [Ironic note: Some months later, Andy Breslau, the album’s producer, mailed me. We had a long, pleasant discussion over e-mail, and $10 later, I have a legal copy of the EP. So sometimes copyright holders will find you.]

Music is a bit hairy, because there’s the copyright on the lyrics and notes themselves, but then there’s the copyright on the recording. The label owns the copyright on the recording. The songwriter owns the copyright on the lyrics and notes. If an artist breaks from a label, the recordings don’t go with them, but they have the rights to re-record the song. Prince has long been threatening to do exactly this (and for all I know he’s made good on it).

That leads us into live concert recordings. A recording that a sound technician makes by splicing into the soundboard or that a fan makes by smuggling in a recording device isn’t covered by the label’s copyright, nor are they covered by the artist’s copyright, which is why the courts have upheld the rights of bootleggers. When you go into a record store and plunk down $40 for a Tori Amos live CD, Amos never sees a dime of it. The live recordings field is an underground industry, living on the very fringe of the law. As I said before, some artists worry about this stuff a lot, while other artists go so far as to encourage it. You have to be a fan to love these recordings, so I don’t see any problem with them. Record labels do, but the law isn’t on their side in this case. They may argue that this hinders their ability to sell live CDs, but I don’t buy that. I own every live Joy Division album their record label ever put out, plus every bootleg I’ve managed to find. The fanatics will buy anything that has their favorite band’s name on it, and those are the people who plunk down obnoxious amounts of money for these bootlegs. If those MP3s hurt anyone, it’s the bootleg record companies and the record stores that deal in them.

The other place where this question comes up a lot is old software. The author doesn’t make a dime if you go buy an Atari 2600 cartridge at a flea market for a buck, so it doesn’t make any difference to the author, I would assume, if you bought a copy of it or just downloaded the ROM image and played it with an emulator–though it makes a big difference to the law. With software this old, frequently the publisher is long gone, the author may or may not still be alive, but the copyrights are still valid for a few more years and someone, somewhere, owns them and could choose to enforce them.

Really, what it comes down to is two questions: 1. Am I hurting the owner of the copyright? And 2. If I’m not hurting the owner, morally I can do this, but legally I may not be able to, so am I willing to take that risk?

I hope that answers your question. I’m sure others will pipe in as well.

Dave

More thoughts on MP3. Record sales are down. The industry blames MP3. But as labels consolidate, they axe artists by the hundreds or thousands. The end result is fewer people recording music, and, probably, fewer sales. Plus, many artists don’t hit it big right away. It took U2 seven years and five albums. Today, they’re Ireland’s biggest industry. They wouldn’t have survived if they had come along in 1999 rather than 1979–Boy was a great album, a really great album, but probably wouldn’t have been a great commercial success in any era.

I don’t think MP3 hurts teenybopper bands like The Backstreet Boys and ‘NSync. Sure, those songs get pirated by the boatload, but they also sell by the boatload, and much of the money surrounding bands like that is in merchandising–lunch boxes, bedsheets, posters, videos… The records are an afterthought. (And it shows.) Those bands will disappear within a couple of years, just like the New Kids on the Block did in the late ’80s/early ’90s and the Bay City Rollers in the mid-1970s.

I think who the MP3s really hurt are the one-hit wonders. You know, bands like Deep Blue Something, who record an album with exactly one catchy song (“Breakfast at Tiffany’s,” in that band’s case) that goes on to become a mega-hit, but with no obvious followup the band drops off the face of the earth.

I don’t see how MP3s can hurt established bands any more than radio taping does. And record companies fall all over themselves to get their acts played on the radio.

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