GregHowley.com

MP3s Are Not The Devil, by Orson Scott Card

Since every penny I earn depends on copyright protection, I'm all in favor of reasonable laws to do the job.

But there's something kind of sad about the recording industry's indecent passion to punish the "criminals" who are violating their rights.

Copyright is a temporary monopoly granted by the government -- it creates the legal fiction that a piece of writing or composing (or, as technologies were created, a recorded performance) is property and can only be sold by those who have been licensed to do so by the copyright holder.

Without copyright, once a work was performed or printed, other people who saw or heard or read it could simply do their own performance or print their own editions, and keep all the money without paying a dime to the creator of the work.

At the same time, a book or song isn't land or even corporate stock. In exchange for the private monopoly of copyright, when it expires the work is then free for anyone to perform or print or record.

Until 1978, copyright only lasted 52 years in the U.S. -- and then only if you remembered to renew it. There were other technical lapses that could result in the inadvertent loss of copyright -- it wasn't really user-friendly.

And the most obnoxious feature of the law was that some authors outlived their copyright. Their most popular works would go into public domain while they were still alive and counting on the income. It's like revoking someone's Social Security at age 72, just because they had the temerity not to die when demographics predicted they would.

Since 1978, the law was changed so that copyright lasted until a certain number of years after the author's death. So not only did the author never outlive the copyright, but the author's dependents could continue to derive income from it for some time.

Also, copyright began, not when the work was listed with the Library of Congress, but rather from the moment of creation.

But there were loopholes. If you wrote something as an employee of a company that paid you a salary for creating it, then your writing was a "work made for hire" and the copyright belonged to the company. You had no rights.

Here's where the ugly stuff begins. A lot of publishers began routinely requiring writers to sign contracts that declared that what they wrote was a "work for hire," so that the authors wouldn't own any part of their own work. Of course the companies didn't actually hire the writers and give them benefits, like real employees. It was basically highway robbery -- the companies demanded that either the writers sign their names to a lie and give up all their rights, or the company wouldn't publish it.

Only a few of us were stubborn enough to refuse to sign work for hire contracts. It was an expensive moral quibble, but I have real objections to perjuring myself and pretending that I was hired by a company when in fact I never was. If I took all the risks and wrote something on spec, then the copyright should belong to me. I'd license them to do whatever was needed, but I wouldn't, in effect, declare them to be the author of my work.

Who Are the Thieves in This House?

So it's pretty hilarious to hear record company executives and movie studio executives get all righteous about copyright. They've been manipulating copyright laws for years, and all the manipulations were designed to steal everything they could from the actual creators of the work.

Do you think these companies care about the money that the actual creators of the work are being deprived of when people copy CDs and DVDs?

Here's a clue: Movie studios have, for decades, used "creative accounting" to make it so that even hit movies never manage to break even, thus depriving the creative people of their "percentage of profits." A few have dared to sue, but most figure that it isn't worth the ill will. (The sentence "You'll never work in this town again" runs through their minds. They remember what happened to Cliff Robertson after he blew the whistle on an executive who was flat-out embezzling!)

And record companies manage to skim enormous amounts of money from ever CD sold. As you can easily calculate by going to the computer store and figuring out the price of an individual recordable blank CD. Figure that the record companies have been paying a fraction of that price for years. Then subtract that from the price of a CD. Figure the songwriters and performers are getting some ludicrously small percentage -- less than twenty percent, I'd bet -- and all the rest flows to the record company.

In other words, the people complaining about all the internet "thieves" are, by any reasonable measure, rapacious profiteers who have been parasitically sucking the blood out of copyrights on other people's work.

And I say this with the best will in the world. In fact, these companies have expenses. There are salaries to pay. Some of the salaries are earned.

But remember that huge fortunes like, say, David Geffen's were made by getting ownership of record publishing companies. Count on it -- Geffen got a lot richer than any but a handful of the actual performers. And when their careers are over, the record company owner keeps right on earning.

Not only that, but the digital technologies that allow perfect-quality copying came as a huge windfall to the studios and record companies.

I basically replaced all my vinyl records and cassette tapes with CDs, and then replaced all our VHS tapes and laserdiscs with DVDs. The record companies and studios would have laughed if somebody said, "This is just an upgrade. I should be able to turn in my vinyl and cassettes for CDs and my videotapes for DVDs, for no more than the actual cost of production." Ha ha ha ha ha.

In all the ridiculously overblown "estimates" of how much the studios and record companies are "losing" from "piracy," nobody bothers to calculate just how much extra money they made from consumers paying full price for music and movies they had already paid full price for only a few years before.

That's all right, you see, because that helps the companies' bottom line, whereas piracy hurts it.

But how much?

The Hit-Making Machine

The real pirates -- people who make knock-off copies of CDs and DVDs and sell them in direct competition (or in foreign markets) -- make a lot of money in some markets, but most of those are overseas. It's a problem, but some reasonable combination of private investigation and police work and international treaties should deal with that.

Internet "pirates," though, usually are more like a long-distance group that trades CDs around.

If you got together with a few of your neighbors and each of you bought different CDs and then lent them to each other, that wouldn't even violate copyright.

In fact, the entire music business absolutely depends on the social interaction of kids to make hits. You stop kids from sharing music, and you've shut down the hit-making machine.

Copyright violation comes from the fact that digital copies -- even the compressed MP3 format -- are nearly perfect. And when you "lend" your copy to someone over the internet, you still have your original. And he can lend to ten more or a hundred more or a thousand more, and the record company is only paid for that first copy.

Well, that's not a good thing -- if that became the primary way music was published.

The record companies swear that it's making a serious inroad on sales, and they can prove it. How? By showing that their sales are way down in the past few years.

It couldn't possibly be because (a) most of us have already replaced all our old vinyl and cassettes, so all that windfall money is no longer flowing in, or (b) because the record companies have made some really lousy decisions as they tried to guess what we consumers would want to buy.

It couldn't possibly be that they've targeted all their marketing at precisely the market segment -- high school and college students -- who are most likely to be sharing MP3s over the internet.

Maybe if they started marketing more music that people my age would enjoy, they'd find that, lo and behold, there are customers who prefer to buy music the legal way!

It's All Happened Before

The irony is that we've played out this whole scenario before, more than once. When radio first started broadcasting records instead of live performances, the music publishing industry became livid. This was going to hurt sales! A compromise was reached whereby radio stations paid small fees to the publishers for each playing of a record.

But the truth is that it's a lot of bother for nothing. Radio didn't hurt record sales. Radio made record sales, because people wanted to own the records they heard on the radio. Radio let people hear musicians they might never have found otherwise.

Same thing with TV and movies. Yes, TV wiped out the B-movie market segment and it killed newsreels -- but it opened up a lucrative aftermarket that kept movies alive long after they would have stopped earning money. That's how Wizard of Oz and It's a Wonderful Life and many other movies became American icons.

And again, with the VCR, studios were terrified that people would tape things off the air and stop paying money for movies. (And the TV networks were terrified that people would tape shows and skip over the ads; they didn't realize that most of us are too lazy to skip over commercials.)

And rental videotapes! That was the end of the world!

When the studios finally stopped charging ninety bucks for a videotape, they discovered that the videotape (and now DVD) aftermarket was often bigger than the original theatrical release.

The internet is similar, but not identical, to these situations.

First, most of the people who are getting those free MP3s would not be buying the CDs anyway. They're doing this in order to get far more music than they can actually afford. That means that if they weren't sharing MP3s online, they would simply have less music -- or share CDs hand to hand. It does not mean that they would have bought CDs to get the tunes they're downloading from Napster-like sharing schemes.

That's why I laugh at their estimates of "lost sales."

How to Teach Your Customers to Hate You

It only gets stupider the more you think about it. The kids they're trying to prosecute and punish are in exactly the demographic that advertisers are most eager to target, not because they have the most money -- far from it, people my age have all the money -- but because they're "brandable." They haven't yet committed themselves to brand loyalty. They're open to all kinds of possibilities. And advertisers want to get to them and imprint their brands so that they'll own these consumers as the get older and start earning money.

So just how smart is it to indelibly imprint on their young minds a link between your corporate brand and outrageous punishments for music sharing?

Let's keep this in perspective. We're not talking about murder here, or child molestation, or even speeding on the highway. No one's life is put at risk. In all likelihood, nobody is really losing any money they would have had anyway. So just what kind of punishment is really deserved?

There is such a thing as defeating your own purpose. Like Queen Mary I of England, who tried to restore Catholic fidelity by burning a couple of hundred Protestants whose sins were as trivial as buying a Bible and having people read it to you. Every burning made it more certain that Catholicism would become loathsome to more and more of the population.

I was especially amused at Utah Senator Orrin Hatch's support for seeding the MP3-sharing sites with computer-destroying viruses.

I mean, this is one of the leading figures on the Senate Judiciary Committee, and he actually wanted to punish people without any kind of due process -- and all for an offense against copyright.

Open sharing of music files doesn't actually hurt the creators of music. It helps them. When friends can say, "Have you heard Eva Cassidy's music? Here, I'll send you a couple of songs, you won't believe how good she is," that's called "word of mouth," and what you'll get is more and more people who attend her live performances and buy her CDs.

More sales for musicians that might otherwise never have been heard of.

You should hear singers like Janis Ian go on about how much good file-sharing does for the careers of musicians who aren't the pets of the record companies. The record companies pretend they're protecting the rights of the musicians, but you have to be deeply dumb to believe that. What they mean is that they want to protect the rights of the musicians they have under contract -- even if their "protection" hurts everybody else.

The real gripe for the record companies is not these fictional "lost sales." What's keeping them up at night is the realization that musicians don't need record companies any more.

Musicians can go into a studio, record their own music exactly as they want it, and not as some executive says they have to record it because "that's what the kids want."

Then they can sell CDs at their live performances and set up online, with a bunch of MP3s that people can share around. They also can sell CDs, and without a lot of expensive record company overhead.

Of course, fulfilment and website management can be an expensive pain, so what will emerge is a new kind of recording company -- full-service online stores that make only as many copies of a CD as are ordered, so there's no inventory to maintain. They'll take a much smaller share of the money than the existing companies do, so the CDs can sell for much less -- while the artist still makes more money per sale than the big record companies ever allowed.

Change the Law to Help the Artists

Meanwhile, let's remember that the studios and record companies have recently been manipulating the copyright laws to their own -- not the artists' -- advantage.

When a corporation is listed as the "author" of a copyrighted work, then what does lifetime-plus-twenty or lifetime-plus-fifty really mean? Whose lifetime?

And extending copyright to ludicrous lengths of time is against the public interest. Twenty years after the author's death or the author's hundredth birthday, whichever comes last -- that's a workable standard to provide for the author and his or her immediate heirs. It comes to an end, and the work enters the public domain as it should.

And let's eliminate this nonsense about corporate authorship. If a corporation claims to be the "author" for copyright purposes, then the whole life of the copyright should be twenty years, period. Corporations aren't authors of anything, ever, and they don't deserve the protections actual human beings have. They make most of their money in twenty years, except on a handful of works that enter the public consciousness. But just like trademarks that become ordinary words, like aspirin, it is precisely in these cases that corporately-authored works should enter the public domain quickly.

If you changed the law that way, suddenly "work for hire" contracts would disappear, and the real creators would be treated with more respect by the big companies -- because they'd much rather have a fair contract with an author whose copyright will last many decades than to have outright "authorship" of a twenty-year copyright.

The companies would even have a vested interest in helping creative people live longer. Instead of trying to give them ulcers, heart attacks, strokes, fatal depressions, and reasons to drink.

How to Stop the File-Sharing

Truth to tell, I don't have much patience with the websites and systems that allow indiscriminate sharing of MP3s among strangers. I'd like to see them shut down. But they can't be, not without changing international agreements, because how can the U.S. government stop a file-sharing scheme that works on a server in Singapore? And Orrin Hatch's killer-virus scheme would be a form of international terrorism.

The same thing that keeps us from blocking the scourge of internet porn also keeps us from being able to take any practical measures to block MP3-sharing websites. And frankly, I think the porn sites cause far more harm to Americans than MP3-sharing. If the government goes after teenagers sharing songs but does nothing about family-wrecking, soul-numbing porn, then something is deeply, deeply wrong.

Do you know how to stop file-sharing on anything other than a friend-to-friend, word-of-mouth basis?

Instead of turning the file-sharers into martyred heroes, the way the short-sighted executives want to do, just educate people that it's OK to let people hear a sample, but don't give away whole albums of work you didn't create. This is not a hard concept; people would get it.

Scorn works far better than lawsuits and punitive damages at changing society. I already react that way when somebody says, "Let me copy the CD for you." I affix them with a steely glare and say, "Do you own the copyright for that?" They usually say something face-saving, and I let them, because I'm not a puritan about it. But they not only never offer to copy songs for me, most of them also get more nervous to offer it to other people.

That will stamp out the "sharing" of whole CDs pretty quickly, if it catches on.

The same technique is the only effective one against the social spread of hard drugs. Most people only try self-destructive drugs because they think their peers will think they're cool for doing it. If their peers treated it with the same scorn they now offer those who, say, attend Sunday school, how many people would use drugs?

Do you think the use of cocaine would have become so widespread if it hadn't been treated as "cool" by the very studio and record company executives who are now in favor of rigid copyright law enforcement?

Fair is fair. I think any company that ever had an employee provide illegal drugs for musicians, or for anyone else at a company function, should be declared to have no standing to bring suit against anybody for copyright law infringement. The drugs they knowingly passed around (and, I would guess, still continue to pass around, if more discreetly) have killed far more people than Napster ever would have. There ought to be a hypocrisy penalty.

Strip away all the pretension, and what you really have is this: Rapacious companies that have become bloated on windfall profits and ruthless exploitation of other people's talents are now terrified that the gravy train will go away.

Because in the brave new world of online distribution of cheap CDs, do you know who the only losers would be? Big-salary executives and owners of big record companies.

The movie studio executives are safer -- it takes big money to make big movies, and nobody can distribute on the net the experience of going into a theater to see a first-run movie.

Clean Up Your Own Act First

Americans are generally good people. If you explain to them why a rule is necessary, they'll generally go along with it.

But you have to get rid of the hypocrisy first. File-sharing is not the end of the world, and the existence of music and movies are not being threatened, any more than they were with the advent of radio, television, and VCRs.

And let's just laugh at the self-righteousness of the "injured" studios and record companies. We can't take them seriously until they've tried the obvious market responses:

Drop those CD prices to a reasonable level -- even if it means firing some of those big-salary execs and cutting out some of the percs. (It won't take the record companies long to figure out how to take a percentage of concert performances to make up for lost income, anyway -- or are they already doing it?)

Start treating the artists better, and let copyright be awarded to the creators, not the backers. When the audience sees that copyright law is protecting the musicians from the corporate exploiters, then they'll be more likely to obey the copyright law. The emotional connection is between musician and audience.

Which is why the companies should stop threatening us and our children with ludicrous prosecution, or with software designed to sabotage our right to make backup copies and transfer files from one player to another for our legitimate personal use.

The more visible you make yourselves, all you executives, the more everybody will hate you. Disappear from the public eye and revise your business model to fit the current technology.

Meanwhile, any copy-protection scheme you come up with that would make it harder for me to copy songs onto the player I use when I'm running, and I'll simply stop buying any music from your company. I already have a lot of music. I can listen to it for years before I need to buy another CD, if you've made it so I can't use it in the lawful ways that I want to.

Then let's get back to the real world, instead of wasting any more time on the petty and mostly self-inflicted problems of rich but badly-managed corporations.

Copyright © 2003 by Orson Scott Card.