Music and your rights, pt. 2
Jan. 5th, 2006 08:13 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
greatbear(This is part two in my multipart article discussing the changing landscape of the music industry and what it means for the listeners, the artists, and the recording industry itself. While I am no expert in the field, I've been an avid listener since a very young age, and I have been at least partially involved with most aspects of the process that gets music from an idea to your ears (performance, recording, engineering, radio, mastering, etc). I can look at this issue from every perspective. The thing is, I have my own opinions, many of which are being expressed in this series. I hope it's been entertaining, enlightening and not too boring.)
Your Friend - A Dying Breed
The Times They Are A-Changin'
The music and movie industries (taken together nowadays as 'the entertainment companies') had been tasting technology all along. Thing is, they had their own flavors, different from ours. Where the consumer saw the march of technology bringing them new features, conveniences and formats, the side the entertainment companies saw, particularly the movie industry, was a means to maximize their income from product. While this is always the goal for good business, for these guys it took on an even higher goal. Actually, it was more like a giant step backwards. At the beginning of my article, I said that before recording technology, movies, player pianos, etc, the musicians (and the agents, producers, exhibition hall owners and so forth) were compensated for each performance of their work. It was becoming technically feasible to make a return to the 'pay for play' model. The sticking point, however, was the hundred or so years that people had to get used to the notion of playing recorded music as often as they wanted without paying one red cent more. Even the record companies were used to this business model by now, having built up enormous manufacturing and distribution systems all over the world. It would be a tough sell.
DIVX The Bad
Around the time of DVD's introduction, the movie guys were concerned that handing out high quality digital versions of their content might not only put them in the same boat as the CD people, where not only would there be a chance that their movies could be copied, but would essentially last for generations and once purchased, would never have to be bought again. Tapes wear out, records get scratched, but an optical disc, if kept relatively good care of, would last forever. The market for used DVDs, like CDs, legal under the Fair Use Doctrine was huge, and successful. Time and time again the industry barons would fire off their lawyers at the local Record Trader stores claiming what they were doing was illegal and a cut into their profits. Time and time again, the courts ruled in favor of the stores. Fair Use was the law of the land, and it rocked the house. What if there was a way to somehow require the consumer to play their movies on a system tied to a payment mechanism? Enter DIgital Video eXpress, the brainchild of electronics superretailer Circuit City and a Hollywood entertainment law firm. DIVX, an extension to the DVD standard relied on a special player which connected to your phone line, and DIVX discs, DVD-like optical disks containing the movies, and a subscription. DIVX was touted as a cheaper alternative to DVD, which, like the CDs before them carried a considerable premium over their analog counterparts. The scheme worked like this: the media itself bore an enticingly low price, usually 5-6 dollars (as opposed to the 20-25 bucks for a DVD at the time). Once purchased and inserted into the player, a timer was started. You had a 48 hour period to view the disc continuously. For people who would buy a DVD and only watch it once, this was touted as a good deal. Subsequent views, whole or part, after that initial 48 hours cost approximately 2-3 dollars each. Still, according to the hype, a better deal than a more expensive DVD for casual viewers. For those wanting unlimited viewing, a one-time fee of, you guessed it, 20-25 dollars was charged to upgrade to DIVX Gold and the disc could be viewed indefinitely. The kickers, well, were numerous. Of course, a DIVX disc would not play in a standard DVD player. Also, if you decided to take your DIVX disk to your friend's place, who was also a DIVX subscriber, the disc, upon inserting in his player, would require the pay-to-play fee of 2-3 dollars, even though this disc might have been upgraded to Gold. Also, the market for used DIVX would be nonexistent, as any disc you would obtain would have to be paid for.
Word got out about DIVX. People only saw the cheaper prices charged for the discs. What was not made readily apparent was the limited viewing and extra costs, the additional 100 dollars that the 'enhanced' players cost and the essential worthlessness of your discs to anyone else. While DIVX was meant to be sold anywhere (it was being hawked to grocery stores, 7-11s, other electronics retailers, etc), an outfit like Best Buy was not too keen on selling a system that benefitted a competitor. DIVX became a one-trick pony, and when the truth was told via the early days of the internet and by word of mouth, it died a quiet death. People had about two years of being able to view their DIVX discs unti they became worthless upon the shutting down of the servers and infrastructure that ran the system. At least the DIVX players themselves could still function as a standard DVD player. While not a success by most measures, it was a demonstration that the technology could work and some (foolish) people would buy into it. It's all the entertainment companies needed.
DAT's Entertainment
Around the time that CD sales started to take in the 80s off and digital audio became the buzzword that everyone tuned in to, an effort was being made to upgrade the analog cassette recorder and bring it into the new digital world. It was a relatively short lived period in consumer electronics history, since the RIAA immediately voiced concerns that the tape decks would be used to created copies of commercial music and the specter of pristine generational copies worming their way across the landscape would devastate their business. Numerous carrots were offered to the music moguls in order to make the product a reality. The recording sample rate would not be the same as CD (48kHz vs 44.1kHz), making direct digital copies impossible. Royalties were tacked onto the blank media. Efforts were made to help in the making of prerecorded media that would play in the slightly lower-fidelity rate of 44.1kHz of CDs preventing digital transcribing. The RIAA kept shaking their head, relegating the DAT format to the realm of professional studios due to it's expense. Here was a case where the content providers managed to set the rules of the game against the hardware manufacturers to the point of beating back a viable form of technology.
Back To The Future
We are sitting at the edge of an incredible new world. Technology has given us new ways to discover, share and listen to music, the legality of which is not quite determinable in some cases. While fair use allowed us to do with our music what we wanted to, as long as we did not derive any financial gain as a result, other parts were not clear. Fair use was not clear on making copies and giving them to friends. While never enforced, the RIAA more or less turned their heads from the limited sharing that was going on. Sharing often made people aware of new music, and sales resulted from this. Thing is, 'sharing' was never envisioned on a worldwide scale involving millions of people. It was also ridiculously simple. Ripping CDs and sharing files only needed a few mouse-clicks using freely available software.
Exit Light, Enter Night
While the recording industry was being vocal for the longest time over any affronts to their business model, the artists themselves were never heard from in any widespread sense. This changed when the members of Metallica discovered a demo version of their song "I Disappear" was available through Napster. Investigating further, they discovered their entire catalog freely available via that service as well. Seeing their very livelihood in jeopardy, they set out to sue Napster for copyright infringement. The irony in this was that of all the bands to take up a cause against Napster, Metallica themselves owed their early success to people who would share taped copies of their first albums since airplay of Metallica in their beginning was essentially nonexistent. Instead of becoming a champion for artist's rights with regard to file sharing, Metallica, with Lars Ulrich coming across as whiney, greedy, out of touch with their first success and apparent proof that 'drummers are bummers'. Napster Bad!
With pressure against Napster mounting, the service instituted a file name filter which blocked searches of popular artists and songs. The service plodded along as people became creative in their naming of files, but in the meantime other, decentralized services sprang up like weeds practically overnight. File sharing grew by leaps and bounds. Napster finally folded, but it was too late. The genie was not only out of the bottle, but also going around and giving millions of people their every musical wish.
(In my next installment (which had already been halfway prepared but lost to a computer operator glitch) I will talk about the technical aspects of copy protection, the issues it creates and if it really makes a difference in 'piracy', and death of fair use as we know it. Your comments so far have been appreciated, and so far exactly in line with what I was hoping for. They are helping to write this series.)
Your Friend - A Dying Breed
The music and movie industries (taken together nowadays as 'the entertainment companies') had been tasting technology all along. Thing is, they had their own flavors, different from ours. Where the consumer saw the march of technology bringing them new features, conveniences and formats, the side the entertainment companies saw, particularly the movie industry, was a means to maximize their income from product. While this is always the goal for good business, for these guys it took on an even higher goal. Actually, it was more like a giant step backwards. At the beginning of my article, I said that before recording technology, movies, player pianos, etc, the musicians (and the agents, producers, exhibition hall owners and so forth) were compensated for each performance of their work. It was becoming technically feasible to make a return to the 'pay for play' model. The sticking point, however, was the hundred or so years that people had to get used to the notion of playing recorded music as often as they wanted without paying one red cent more. Even the record companies were used to this business model by now, having built up enormous manufacturing and distribution systems all over the world. It would be a tough sell.
Around the time of DVD's introduction, the movie guys were concerned that handing out high quality digital versions of their content might not only put them in the same boat as the CD people, where not only would there be a chance that their movies could be copied, but would essentially last for generations and once purchased, would never have to be bought again. Tapes wear out, records get scratched, but an optical disc, if kept relatively good care of, would last forever. The market for used DVDs, like CDs, legal under the Fair Use Doctrine was huge, and successful. Time and time again the industry barons would fire off their lawyers at the local Record Trader stores claiming what they were doing was illegal and a cut into their profits. Time and time again, the courts ruled in favor of the stores. Fair Use was the law of the land, and it rocked the house. What if there was a way to somehow require the consumer to play their movies on a system tied to a payment mechanism? Enter DIgital Video eXpress, the brainchild of electronics superretailer Circuit City and a Hollywood entertainment law firm. DIVX, an extension to the DVD standard relied on a special player which connected to your phone line, and DIVX discs, DVD-like optical disks containing the movies, and a subscription. DIVX was touted as a cheaper alternative to DVD, which, like the CDs before them carried a considerable premium over their analog counterparts. The scheme worked like this: the media itself bore an enticingly low price, usually 5-6 dollars (as opposed to the 20-25 bucks for a DVD at the time). Once purchased and inserted into the player, a timer was started. You had a 48 hour period to view the disc continuously. For people who would buy a DVD and only watch it once, this was touted as a good deal. Subsequent views, whole or part, after that initial 48 hours cost approximately 2-3 dollars each. Still, according to the hype, a better deal than a more expensive DVD for casual viewers. For those wanting unlimited viewing, a one-time fee of, you guessed it, 20-25 dollars was charged to upgrade to DIVX Gold and the disc could be viewed indefinitely. The kickers, well, were numerous. Of course, a DIVX disc would not play in a standard DVD player. Also, if you decided to take your DIVX disk to your friend's place, who was also a DIVX subscriber, the disc, upon inserting in his player, would require the pay-to-play fee of 2-3 dollars, even though this disc might have been upgraded to Gold. Also, the market for used DIVX would be nonexistent, as any disc you would obtain would have to be paid for.
Word got out about DIVX. People only saw the cheaper prices charged for the discs. What was not made readily apparent was the limited viewing and extra costs, the additional 100 dollars that the 'enhanced' players cost and the essential worthlessness of your discs to anyone else. While DIVX was meant to be sold anywhere (it was being hawked to grocery stores, 7-11s, other electronics retailers, etc), an outfit like Best Buy was not too keen on selling a system that benefitted a competitor. DIVX became a one-trick pony, and when the truth was told via the early days of the internet and by word of mouth, it died a quiet death. People had about two years of being able to view their DIVX discs unti they became worthless upon the shutting down of the servers and infrastructure that ran the system. At least the DIVX players themselves could still function as a standard DVD player. While not a success by most measures, it was a demonstration that the technology could work and some (foolish) people would buy into it. It's all the entertainment companies needed.
Around the time that CD sales started to take in the 80s off and digital audio became the buzzword that everyone tuned in to, an effort was being made to upgrade the analog cassette recorder and bring it into the new digital world. It was a relatively short lived period in consumer electronics history, since the RIAA immediately voiced concerns that the tape decks would be used to created copies of commercial music and the specter of pristine generational copies worming their way across the landscape would devastate their business. Numerous carrots were offered to the music moguls in order to make the product a reality. The recording sample rate would not be the same as CD (48kHz vs 44.1kHz), making direct digital copies impossible. Royalties were tacked onto the blank media. Efforts were made to help in the making of prerecorded media that would play in the slightly lower-fidelity rate of 44.1kHz of CDs preventing digital transcribing. The RIAA kept shaking their head, relegating the DAT format to the realm of professional studios due to it's expense. Here was a case where the content providers managed to set the rules of the game against the hardware manufacturers to the point of beating back a viable form of technology.
We are sitting at the edge of an incredible new world. Technology has given us new ways to discover, share and listen to music, the legality of which is not quite determinable in some cases. While fair use allowed us to do with our music what we wanted to, as long as we did not derive any financial gain as a result, other parts were not clear. Fair use was not clear on making copies and giving them to friends. While never enforced, the RIAA more or less turned their heads from the limited sharing that was going on. Sharing often made people aware of new music, and sales resulted from this. Thing is, 'sharing' was never envisioned on a worldwide scale involving millions of people. It was also ridiculously simple. Ripping CDs and sharing files only needed a few mouse-clicks using freely available software.
While the recording industry was being vocal for the longest time over any affronts to their business model, the artists themselves were never heard from in any widespread sense. This changed when the members of Metallica discovered a demo version of their song "I Disappear" was available through Napster. Investigating further, they discovered their entire catalog freely available via that service as well. Seeing their very livelihood in jeopardy, they set out to sue Napster for copyright infringement. The irony in this was that of all the bands to take up a cause against Napster, Metallica themselves owed their early success to people who would share taped copies of their first albums since airplay of Metallica in their beginning was essentially nonexistent. Instead of becoming a champion for artist's rights with regard to file sharing, Metallica, with Lars Ulrich coming across as whiney, greedy, out of touch with their first success and apparent proof that 'drummers are bummers'. Napster Bad!
With pressure against Napster mounting, the service instituted a file name filter which blocked searches of popular artists and songs. The service plodded along as people became creative in their naming of files, but in the meantime other, decentralized services sprang up like weeds practically overnight. File sharing grew by leaps and bounds. Napster finally folded, but it was too late. The genie was not only out of the bottle, but also going around and giving millions of people their every musical wish.
(In my next installment (which had already been halfway prepared but lost to a computer operator glitch) I will talk about the technical aspects of copy protection, the issues it creates and if it really makes a difference in 'piracy', and death of fair use as we know it. Your comments so far have been appreciated, and so far exactly in line with what I was hoping for. They are helping to write this series.)
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
Oooh, you said...
Date: 2006-01-06 02:25 am (UTC)I'm especially fond of the "MP3: Good or Goblin?" bit with spokesperson Nutty McShithead from the Recording Association for Popsong Economics (R.A.P.E.).... ;)
We will hunt you down like dogs and fuck you 'til your de-ead!"
DIVX
Date: 2006-01-06 02:43 am (UTC)You're point is well taken, I think. The more the RIAA pushes, the fewer and fewer customers they will gain. In the end, it will be the customers and the musicians who will loose, not the RIAA and the companies they represent.
no subject
Date: 2006-01-06 02:52 am (UTC)I think ultimately, they may be shooting themselves in the foot in the long run and they are too busy fighting technology to see it for themselves.
Tagging on for the ride
Date: 2006-01-06 03:46 am (UTC)http://members.tripod.com/the_huggers/words.htm (scroll down a little more than 1/2 way to "MP3 vs. RIAA")
There are far more evils the "Industry" has up it's sleeves. Have you noticed the number of re-issues in DVDs and CDs... 6 months after initial release there is suddenly an "Ultimate Collector's Edition" or "Special Bonus Limited Edition" - these are tactics to keep people buying the same stuff over and over again. The Industry can't seem to get enough quality new product out there so they flood us with the same but different stuff.
One little piece of history I found most interesting dates back to the day of the Player Piano. Those wonderful machines that would play a scroll that looked like a long punch card that would trigger your piano to play a popular piece of music. Anytime you wanted to hear your favorite song live in your home you would pop in a scroll and pump some pedals. Well, the sheet music publishing houses (and a forerunner to the RIAA) freaked out. This contraptions would ruin sheet music sales which is how composers of the day made their money. In fact publishing rights are still where the money is for music and it is a shame these dumb kids won't learn that before they sign their rights away to become BIG stars. Anyway, the publishers filed suit to prevent the sales and production of the pianos as well as the scrolls.
From then the war was on. Every new piece of technology in regards to media has met the wrath of the Industry. In the end everyone loses. The Industry loses money wasted on lawyers in stead of spening it on embracing the technology, the artist lose no matter what and the consumers lose by paying more for less and still not having what you want.
I have a list a mile long of CDs I would LOVE to buy (yes, even at full price) - but they are out of print and will never be reissued. If I can get them via download or copy from a friend I will do it - and the RIAA is not losing a dime because the content is not there to begin with. If the artists would stand up against the RIAA it would put a kink in this whole game.
Just my little added rant to a great couple of posts. And to the person who had to nit-pick... whatever! It's not like you are writing for the Times here. Great info given!!!
HUGS
Re: Oooh, you said...
Date: 2006-01-06 04:40 am (UTC)Re: DIVX
Date: 2006-01-06 04:53 am (UTC)Note that the article (who's link is still at work) counted CDs, legal downloads, and music videos as 'albums', in other words, the sum of all available music for purchase). It's all down.
Treat your loyal, paying customers like dirt, and they will stop buying.
no subject
Date: 2006-01-06 04:54 am (UTC)Copyright is the problem at the core
Date: 2006-01-06 06:03 am (UTC)The original intent of copyright was to allow the creator of a work to profit from it - as a way of encouraging people to create - but that eventually ALL WORK would become public domain. ALL of it, in time. The media corporations have forestalled that with endless extensions - and they've also used it as an excuse to lock things away from the public.
As
I think there needs to be a radical revision of copyright - life of the human creator plus 20 years, or 75 years, whichever is longer. Corporations may not own copyrights, only license them from organic human beings! And here's the kicker - if any persistent copyrighted work [this would exclude ephemera like magazines, newspapers, news broadcasts and the like] remains unavailable for sale to the public for a term of more than two years because the corporation that licensed the copyright has for whatever reason refused to keep it on the market, the rights automatically revert to the creator. Then there is another two-year span, and if the creator has not put the work back on the market, it becomes public domain even if the Life+20 or 75 terms have not yet expired.
I happen to think that this would create a sizeable industry for produce-on-demand of DVDs, CDs and books (just look at the start with companies like Lulu.com or CafePress.com) that content creators could license to produce copies of their work. Even if the prevailing price of a CD in common release was, say, $12.99 - would I pay $20 for [to pick an example] a CD copy of Ebn-Ozn's Feeling Cavalier - complete with the album art and lyrics that came with the original? You bet!
We have the technology where NOTHING ever need go out of print, ever again, and the copyright law - IMHO, of course - is the ideal vehicle to pressure the media companies into making this a reality. They'll have to seriously get over themselves, but they'll be facing the choice of doing that or dying and I think most of them will choose to live.
no subject
Date: 2006-01-06 06:54 am (UTC)I still have a cassette player in my car (and a deck next to my PC) to play copies of albums and mixes of tunes. I guess this goes back to "fair use". The songs are commonplace, but I don't think anyone can duplicate the impact for me of the tape labelled "Keith's Wedding". It's music I programmed for a joyous event, and it worked.
I also have tapes of my stepfather improvising jazz piano. The sonic quality is iffy, the inspiration, the soul of it is his, and he has been gone 13 years. I have a number of other tapes he toiled over, the soundtrack to his Jazz History class that he taught. Would it be wrong to track down the song titles, digitize a few hours of those and put them on the web, get the message out to some of his thousands of UMass/Boston students, so they could re-live the moments where they learned about jazz? Free? No royalty? I don't think so, this is chickenshit.
IMHO, what has changed is the airwaves. In Boston we used to have two option on the AM radio to hear rock'n'roll, and when the RKO corporation began an upstart AM station called WRKO, we flocked to it as the "alternative". After a few years, the stodgiest station here, WBZ, gave a local DJ 2 hours on Sunday afternoon called "Subway" and we could sit and listen to surreal poems by Kenneth Patchen alternated with new songs by the Doors and Pink Floyd. Soon that became a format on "underground" FM stations. Within ten years, the whole idiom had become so corrupt and far from the music (with drugs, money, lack of creativity, and the end of the Vietnam War) that punk was inevitable.
Always loving the music, sometimes I loved the corporate trappings of the music. As a kid, it was a triumph when every Beatle's single entered the Billboard charts at #1. But what about when there was a new group, I remember when the Bee Gees hit #1 with New York Mining Disaster/To Love Somebody on the first week, and I had barely heard the songs. Through the 80's it still meant somethign to me that the B-52's could break through, the Pet Shop Boys or an old friend like Neil Young. This was a time when ideas that were hip and subversive were able to cross over to "pop".
Music today is more complex and diverse. I haven't really been able to follow the trends for ten or fifteen years (it's been awhile since I was a teenager). But these people leading the charge on file sharing are the industry wonks trying to shape the next Brittney Spears. They have made music production into a high-risk game similar to the production of $200 million blockbuster movies (hey, did you catch "Fantastic Four"?). Every single needs to be released with an all-dancing, all lip-synched music video, too.
Then there's the real alternative music. People who play, who write for themselves, who do music part-time, who record on increasingly adequate home equipment. Some of this is popular regionally (maybe just in town), some of it gains distribution through record stores, online, or at Walmart. This is real music (though, admittedly, "Toxic" is .. um... fun) and some of it has to last. I don't think the "Business model" for this music has really been perfected (Aimee Mann doesn't count, she's been almost famous to me as a Boston native for 25 years) but I think that there will be a way for these musicians to afford to live a life, have families, buy a house, help their own families....
In the meantime, there are a bunch of entertainment lawyers, accountants and entertainment industry executives who are trying to track how different tunes they own the rights to are used. The actual artists are rarely mentioned, unless they are trotted out like Metallica. It always makes me think of LaVerne Baker coming back, stopping being a cleaning lady, getting a good lawyer and winning a lawsuit for fat back royalties (songs like "Jim Dandy"). Nobody in the "industry" was concerned with her economic loss until she got a good lawyer.
Anyway, Phil, I am enjoying your series, as you can tell I largely agree with you.
no subject
Date: 2006-01-07 12:40 am (UTC)no subject
Date: 2006-01-07 11:48 pm (UTC)http://video.google.com/videoplay?docid=6514168251893889573
no subject
Date: 2006-01-08 04:10 am (UTC)Tell ya what... if the sum of cash is largish enough, I'll buy you one too.