SHAME METALLICA - KAZAA RULES OK
On September 5, the company who
market Kazaa file sharing software were essentially put out of business by the
Australian Federal Court. Their free software allows users to share any files,
but most commonly music and video files. Last June, the U.S. Supreme Court
ruled unanimously that peer-to-peer companies could be held liable for
copyright infringements that occur on their network.
These decisions are the culmination of
a long and vigorous campaign by the music industry to prevent the injury to
their bottom line that free file sharing implies. Their first big win was back
in 2002, when Napster was closed down in the
But do Metallica have a point? Do
they own their music and is copying it theft? Theft is an emotive word. When
God etched his ten commandments onto the stone tablet and established the
divine injunction against “stealing” he was referring to your neighbour’s oxen.
I don’t think he had in mind file sharing.
It all comes down to what it means to
own something.
Actually, nobody really owns anything. Examine the atoms
of your quarter acre block under an electron microscope and you will not find
your name imprinted in the quantum brine. Nor the meal you just paid for, or
even a poem you may have written. Ownership is nothing more than a convenient legal fiction - a very
useful one to be sure. Unfortunately, when we have lived with a useful concept
for so long, we deceive ourselves into thinking that we really own things, even
where that ownership is against the public good.
Ownership of information is even
stranger. For information is not consumable like a hamburger. After you read,
watch, listen to or copy it, it is still there. Nothing is stolen from the
creator. Duplication of information is virtually costless, requiring nothing
more that pressing CONTROL-C. Some call this “piracy”. I call it progress.
The purpose of patent or copyright
protection is to prevent free copy and
use of intellectual creations. Our culture places high value on freedom –
from free speech to free trade. Surely then we would only ban free copy if
there was a net public benefit in doing so.
The standard economic argument for
copyright is that it establishes incentives for intellectual creation. The cost
imposed on society is that the information is used less than if freely
available. So utility is sacrificed explicitly now, in the expectation that
more creative forces will be unleashed in the future.
For example, without patent
protection Pfizer may not invest in the research required to produce a new
cancer drug. The cost of the patent is that the drug is not used by those who
cannot afford it. These people will probably die. There is simply no question
that medical patents directly kill people
in the short term. We accept this as it encourages the creation of new, better
and perhaps cheaper drugs in the future. While this kind of pure utilitarianism
is ethically troubling, it would be fair to say that eliminating all patent
protection would surely not be in the general public interest.
What about sharing music files?
“Sharing” means copying – stealing according to Metallica. Record companies
make no money from this, nor do the musicians who create the music. Even though
music is not a life and death issue, the central question is the same one we asked
of Pfizer: without copyright protection of music where is the incentive to
create?
The question really answers itself.
The incentive to create music is intrinsic to music. From Neanderthal man to
Bach, humans create music because they like to. Does anybody apart from the
record industry seriously suggest that if music is freely distributed then its
creation will disappear off the face of the planet?
Only if musicians are solely
motivated by the remote prospect of a lucrative recording contract. Yet the
number of musicians who make their fortune through their art is truly tiny.
Does the prospect of being one of these lucky few really motivate the garage
band that spoils the peace of your Sunday mornings? Not in my experience as an
amateur muso twenty years ago. It was more about simply getting a regular gig,
having fun, impressing your friends and other vice-ridden fringe benefits that
I would not mention on my employers website!
The economic cost of stopping music
file sharing is truly immense and it is borne by you and me. There are perhaps
hundred of marvelous musical creations that we might not ever listen to because
of the cost or inconvenience of buying it.
No more cherry picking those songs you like. You can just pay for the
whole album and find that only two of the fifteen songs are any good. According
to music industry legal counsel Tony Bannon, who labels those who download
copyright material “robbers”, there were 3 billion music files swapped per
month on Kazaa alone. This is an argument for Kazaa, not against it. The fact
that the consumption of this music did not appear on a corporate balance sheet
does not mean no value was created.
Real musicians want their music to
reach the maximum audience. But if this
means giving it away free how can they make a living? Well first, it is not
written in the stars that creators of music should be able to make a living
from doing it. I know that I never made a living out of it, but I enjoyed it
just the same. Certainly, it is not the state’s responsibility to ensure that
musicians can make a full-time living from music, any more than sculptors or
mime artists or indeed farmers….The critical issue is whether quality musical
creation will still continue at close to present levels without copyright protection.
Clearly it will.
However, it turns out that musicians
can still make a good living without protected recordings. How? Through live performance which was, until a few
decades ago, the only form of mass musical communication. Recordings shared
across the internet would be the main form of marketing. There would still even
be the prospect of making millions if you became popular enough to go on a
world tour.
As for record companies, they are
probably obsolete. Forcing their redundant distribution service on consumers is
like horse saddle manufacturers forcing motorists to install saddles in their
cars. What are the record companies supposed to do, you ask? They are supposed
to go broke. We no longer need them and I suggest you don’t buy shares in EMI.
What about record companies as
promoters of the musical arts? Hasn’t the industry supported outstanding
artists and nurtured creative talent across the globe? Please! A little bit of
historical introspection puts the lie to this. The most creative decade in
living memory for popular music was probably the sixties, and the Beatles and
Stones were not primarily motivated by the lure of money – though they were
amongst the first musicians to become fabulously wealthy through radio
marketing and mass sales. Go back a little earlier to the Jazz era, which most
musicologists would consider a major and continuing tradition in music. Most of
the great Jazz players were poor black Americans who made their living through
live performance. A lack of copyright protection did not hold back this
movement at all. Compare the organic grandeur of Jazz with the homogenous
teenage coolness of MTV. Popular music today is the product of a pre-meditated
business process. Panels of influential music executives trawl through thousands
of demonstration videos each year and try to predict who will sell. Their
choices are driven by salability alone. The purpose of the music is to sustain
the music and radio industries. Not surprisingly, this music and the musicians
selected have nothing to say apart from “look at my sexy booty”.
Kazaa operates within their own
competitive landscape of file sharing platforms, without a patent monopoly on
their software. Indeed they have been superseded by Limewire. If record
companies want to survive, they need to start adding value for somebody. They
might start by building the best file sharing platform on the planet,
customizable, cross referenced, linked to reviews, musician bios and touring
information. In return for this marketing, they might impose a royalty on live
performances.
Let’s just always keep in mind that
the purpose of economic activity is not to support company profits. The real
bottom line is net public benefit. In the words of Metallica: Nothing else
matters.
*A slightly
modified version of this article appeared in the Australian Financial Review on
