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March 31, 2005


The distributors of artistic works also must be incentivized by the intellectual property laws to continuing their distributing.

Hmmm... aren't the distributors currently being incentivized exactly to the extent that they're still needed? It's precisely because some people no longer require their distribution services that their revenues are shrinking, no?

The old response at this point would be to wave one's hands and testify to the power of the "internet" to distribute music, but I trust we all see why it doesn't apply to the current debate on P2P networks

i'm confused by this statement. but i'll come back to it later. there are some things i want to buy from iTunes first.

KenB --

But P2P doesn't merely threaten large distributors; it threatens all distributors, including bands that self-distribute.

Pass for a moment whether "the production of new works" is, in fact, the the sole (or even primary) aim of intellectual property law.  (It ain't) 

Hmmm . . . well, you're certainly the resident expert in the current state of and rationale behind IP law, but that's unquestionably the Constitutional justification for having IP protection at all. No? ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.")

If not, what is the primary justification?

The distributors of artistic works also must be incentivized by the intellectual property laws to continuing their distributing.  And by "distributors" we mean record companies -- large and small, corporate and independent. 

1. Limiting the definition of "distributors" to "record companies" creates rather a self-fulfilling prophecy regarding just what the goals of IP law should be, doesn't it? And my understanding is that the recent spate of DRM-related law, broadcast-flag nonsense, and other rules and regs sought by the RIAA and MPAA actually punish, rather than incentivize, small distributors, promoters, and even independent artists who want to record, promote and distribute their own material digitally, without the intervention of a record company.

2. It's also my understanding that, rather than trying to find new ways to incentivize, what's really going on is a) the protection of a particular model of incentivization that might not be practical or relevant anymore, b) rent-seeking by the MPAA and RIAA in attempts to control how and on what playback devices people may use their products [e.g. the controversy over Linux-compatible DVD players and iPods not accepting WMA-formatted files, c) the practical elimination of any concept of fair use [Jack Valenti is notoriously on the record saying there is no such thing as fair use], and d) the stifling of any sort of cultural growth by the continual extension of copyrights into, effectively, perpetuity [the biggest beneficiary being Disney, who built their empire on the backs of public domain works but want to deny that legacy to anyone else].

i'm confused by this statement. but i'll come back to it later. there are some things i want to buy from iTunes first.

Of course, iTunes is not a P2P service. It is centralized, authorized, digitral rights managematized, and a charge upon your credit carditized.

Of course, iTunes is not a P2P service

of course. and i do see why it doesn't apply to the "p2p debate".

but allow me to re-quote the part i was actually responding to:

The old response at this point would be to wave one's hands and testify to the power of the "internet" to distribute music

iTunes, and many other on-line music stores, do a fine job of distributing music. i'm not sure why "hand-waving" is required to point this out, nor why pointing it out would be an "old response".

just a nit. but that's what i like to pick.

I have a question, but...

I'll save that for later on.
You wanna know if there's something wrong?

Phil --

I've answered in part in my update. The Constitutional mandate -- "[P]romot[ing] the Progress of Science and useful Arts" -- actually encapsulates several things. Primarily, it means allowing artists and scientists to make a living off their work. Patents and copyrights are not intended to benefit already wealthy (who, previously, were the only ones who could aford to do science, etc.); quite the opposite.

A secondary concern is to encourage folks to share what they create -- rather than keep it secret -- so that we can learn form other's discoveries, and use them to make discoveries of our own. (This is primarily a concern with patents, not copyrights.)

It's nothing, Larv. (Nothing nothing.)

I also should note that I can think of probably a dozen local bands off the top of my head that have, in the last two years, made their debut recordings available digitally completely for free, in the hopes that they will show up on P2P networks and that that will drive people to what have always been the real meal tickets for bands: Live shows and merchandise.

Record companies are not how bands get rich or even make a living. Most bands who get signed never end up releasing a recording, and of those who do, very few release a second. At least, that's been true in the past -- over the last decade or so, A&R departments at most labels won't even sign bands they can't position the hell out of and get airplay from on three or four different radio formats. The vast majority of bands end up released from their contracts and owing the record company money on advances.

Bands make money from touring, merchandise sales at live shows and online, and from airplay and any songwriting/publishing royalties they're entitled to. If it were up to labels, bands would work strictly for a salary and that's all they'd get.

My brother's band is putting out music this spring, and I believe they're not even bothering to burn CDs. I'll probably post some announcement of this when it's appropriate, which will of course mean revealing my Secret Identity. Horrors. But I think I've done that before, so no big deal.

My nephew's recorded some stuff that's available online, too, but not for sale. It's not really sale-quality, just a song he wrote and recorded.

"*I don't think it's right to say the number of producers have increased -- at least, Yglesias hasn't presented evidence to support such a claim."

Since Mozart's day?

Without necessarily addressing the issue directly, I do think the way a new distribution or reproduction technology creates markets, consumers and demand, and producers is not so simple, nor an automatic public good.
There may be too many music writers with a hope, if not expectation of making money; and consumers wanting a greater quantity and variety of new material than they can actually appreciate. I speak capitalist blasphemy and heresy here, I know...I mean, we are all rational actors, of course.

I am up to 112 blogs on my RSS feed. Gotta add some women, they feel neglected and ignored. If I skip Abu Aardvark today, I won't be able to comment intelligently on praktike's post. Each blog I comment on creates a network of communities with emotional demands and even possible financial rewards(tho very little).

We take the consumer/producer sociology/psychology a new production/distribution technology creates a little for granted, I think. There be assumptions unexamined.

I've answered in part in my update. The Constitutional mandate -- "[P]romot[ing] the Progress of Science and useful Arts" -- actually encapsulates several things. Primarily, it means allowing artists and scientists to make a living off their work.

But why did the drafters of the Constitution care if artists and scientists could make a living off their work? Only because we, as a society, want them to keep working -- we want the art and science they produce. Letting them make a living doing what they like isn't an independent goal, it's a means to exactly the end that you denied was primary, incentivizing the production of new works.

A copyright system that is compatible with the production of sufficient new art is a well-functioning copyright system.

cleek > Well, for starters, I guess it does a fine job of distributing singles. Whole albums? Not so much, as you're paying the same price as for the physical CD and you still have more restrictions upon what you can do with the bits you get. Plus, the overall quality is lower than CD.

However, in response to an article responding to an article on why record companies should just chill on P2P networks, responding with iTunes does seem to be a bit handwavy. *shrug*

Personally, I think RIAA needs to stay the heck away from P2P networks, continue to sue the infriging users who are quite brazenly breaking the law, and drive people away from commercial music and towards smaller, independant sources. In other words, I'm ready for the RIAA to pretty much go away.

I'm more conflicted about the MPAA, because its HARD to produce the kind of crap that I really like without massive financial and technical resources and that's just not true of music. Sure, I like the occasional art film made for $10k by five people, but I also likes me my LOTR and Star Wars. The MPAA just has to continue to do smart things, like deliver low cost personal editions of movies with high perceived value (ala, the sub-$20 DVD) and increase the quality of the theater experience (IMAX, digital projection, THX sound, etc) to beat out the pirates. When we get to the point where directors can beam movies directly out of their brains into some viewable format with full fidelity on the cheap, I'll be ready for the MPAA to go away too.

How about a thought-experiment? I download a bunch of pre-WWII art. Correggio yesterday, nobody had heard of him outside his hometown for decades to centuries. Painters like Pissarro were paid for the work, the artifact, and had to constantly come up with new stuff in order to make a living. As did Mozart.

What if paintings had been, were perfectly reproducible, and copyrighted? Would all the fresco dudes in the towns surrounding Correggio be out of work? Somebody would have copyrighted putti and perspective. Would Pissarro have done one painting a year instead of one a week? Or would we be drowning in Thomas Kinkade kitsch prints?

An srtist creates an artifact. "Intellectual property" is created elsewhere. You are correct, probably in the law, the reproduction technology, and the distribution system. None of whom are primarily motivated by aesthetics.

I like what Yglesias is saying, it just isn't borne out by any legislative or judicial precedent. I mean, I wish it was. Sadly, to quote Ginsburg in Eldred v. Ashcroft, "To comprehend the scope of Congress' power under the Copyright Clause, 'a page of history is worth a volume of logic.'" And history is definitely on a different page from Yglesias.

Whole albums? Not so much, as you're paying the same price as for the physical CD

really ? the only $9.99 CDs i see in stores are the things i'm never going to buy anyway.

in response to an article responding to an article on why record companies should just chill on P2P networks, responding with iTunes does seem to be a bit handwavy

i was actually just responding to that one little bit i quoted. it's my way.

i agree with your comments about RIAA and MPAA.

Okay, now that Von and I have established our Fugazi bona fides, I really do have a question. For those who support P2P (I do, but have some reservations), do you see the primary utility of P2P as an eventual replacement for current music distribution systems, or as a prod to get the industry to change the current system? What I mean is, does anyone see P2P as a viable system for the distribution of music? Or do you hope that the threat of P2P will get music producers to embrace a third way, neither P2P nor the current system of overpriced music (maybe something like iTunes, but much cheaper)? I'm just curious about what people see as the end result of all this.

Bob --

"Since Mozart's day?"

Your timeframe is off. Yglesias suggested a causal link to P2P networks, with restricts the relevant period to, say, the last ten years (as a practical matter).

"but I also likes me my LOTR and Star Wars."

The "Star Wars" seen in the theaters is gone forever. Lucas had to recolorize it because no one, including Lucas himself, could bother to spend $20k to preserve an original print.

Half of Louise Brooks' films are gone. "Lost Horizon" is gone. Most of 50s TV is gone. These people only started caring about their "intellectual property" and rights as artists when the reproduction and distribution technologies started making them lots of money. The hell with them.

Primarily, it means allowing artists and scientists to make a living off their work.

I'm pretty sure that's not the standard view, and that MY's is the standard view.

A big part of the problem is that copyright is an obsolete system of control. When, once upon a time, reproduction was a time and material intensive proposition it made sense to control that point of reproduction. Information theory and digital technology have rendered reproduction trivial. You simply cannot enforce copyright when anyone with a computer and an internet connection can copy and distribute a work in under ten minutes with trivial cost and almost no degridation of quality.

Intellectual property still needs to be protected, and you are absolutely right that those who produce it deserve to be paid for their work. But the question is not how to enforce copyright, but what the new point of control should be for intellectual property rights. Many 'new media' people, myself included, are thinking that the shift will be from 'copyright' to 'access right.' Access is to information what ownership is to durable goods.

RIAA and the MPAA are hurting because they are trying to apply an old paradigm to new technlology. Artists are hurting because they are controlled by the distributors and the distributors will choke the artists before giving up the profits they make off of distributing the artists' intellectual property. There are no simple short-term answers. Both will suffer until they abandon the old paradigm and find a new one that works with technology instead of against it.

My primary use of P2P has been to get Linux and other free software. I'm a substantially non-infringing user.

I see P2P having benefits to the music industry as a whole in the same way the VCR benefited movies. It forced a new economic model on distributors that in turn opened new markets. If the cost of the product is deemed reasonable, few individuals will use there time to search for and download music, just as (I believe) few people copied videotape after mass market price reductions and rentals appeared. P2P may not directly participate in the industry distribution, but it can open the market to competition, both from musicians without an industry label, and by forcing the monopoly music rights holders to keep their prices in a zone that the consumers deem fair.

Without some form of competition, this industry appeared to be trying to strangle itself with ever increasing and unjustified album prices. That some of the competition isn't strictly legal isn't particularly new. But P2P should not be in and of itself illegal, any more than VCR technology is.

I see others have already made the point that the existing music publishing and distribution does not, in fact, reliably secure to music creators anything like a living. Nor is there any evidence that the peer-to-peer sharing takes anything away in actual sales.

The same seems to be true in my field of writing, roleplaying games. (Dungeons & Dragons and Vampire: The Masquerade are the famous ones.) People actually scan whole books and put them up for download as PDFs, and this has no discernable effect at all on sales. Even very small press stuff, where the total sales may be in the hundreds, doesn't seem to be hurt by it.

I'm still in favor of sales, mind you, and I believe strongly in the desirability of both patents and copyrights, when firmly time-limited and (in the case of patents) properly examined before granting. It's just that the noise about intellectual property rights from the big corporations and a few others doesn't seem to really do anything at all for the vast majority of actual creators.

I use my computer like I used to use my analog tape recorder.

I have also cut off my need for bland top-40 radio, because I can listen to things one hundred times, at my time, before spending money.

I still purchase much music on CD, but rarely regret the purchase...I really go into Tower "informed"

That is the threat.

Janis Ian

Relevant article(old) about Napster is "The Internet Debacle". I would guess a lot of people know her and her views already.
My above posts are about the evolution of copyrights and IP as a source of revenue. I think understanding the history is important to understanding our current situation. 100 years ago many houses had pianos, and shet music was an important business. Both are almost gone now.

There was an eloquent commenter a Yglesias yesterday, a music maker who defended his right to control of the distribution of his creation. Part of what I am saying above is that file-sharing is affecting the expectations of artists.

During the nineties I collected mystery and detective novels. Stephen Greenleaf was a good who quit writing for a while(I no longer follow the genre). He had ten years of small print-runs without significant promotion, and then his publisher refused to reprint his backlist, and wouldn't give up the rights. Out of print.

If Greenleaf suddenly discovered that his books were being shared over the Internet in the thousands, he might be upset and want his creation protected and some income derived. Income that wouldn't exist, or be insignificant, if his publisher could stop the downloading.

I guess I am a bad person, I bought him used. He wasn't worth $10 per reading hour new to me, but was worth about a dollar per hour. But at that price I got ten of his books. Shouldn't presume that downloadings equal lost sales.

But that's irrelevant if those bands (and their distributors) are not also making money off their music.

It's not irrelevant to me. What is irrelevant to me is the desire of record companies to protect monopoly profits. What is relevant to me is the availability of music I want to listen to.

As pointed out above, most musicians receive little if any direct profit from distribution of their music by record companies. Your argument sums up to the idea that either musicians will stop making music if they do not profit from the distribution of sound recordings of that music, or that the works of musicians will not be as available to the public if record companies' monopolies on distribution are not protected.

Both of these are false. Musicians will continue to make music as long as there is a way to distribute it so that it can serve its function - to get people to come to see them perform live music which is how most working musicians make their living. Given that the public is currently willing to pay the cost of distributing sound recordings under threat of fine or imprisonment, it is nonsensical to argue that they would not be even more willing to do so were their actions legal.

Using analogous arguments to the ones you present, it could be argued that the Linux operating system does not exist.


I'm puzzled by your statement that we need to incentivize distribution, and that hand-waving about the Internet doesn't solve anything.

It seems to me that if essentially free distribution won't do the job then there are opportunities in commercial distribution, but if free distribution works then why do we need to incentivize other means?

Could you clarify your point a bit?

The Constitutional mandate -- "[P]romot[ing] the Progress of Science and useful Arts" -- actually encapsulates several things. Primarily, it means allowing artists and scientists to make a living off their work.

I nearly laughed out loud at this. "Progress" means "payment."

Copyright does allow artists to live off their work, but I think that the Constitution is clear: "making a living" is not the point. The point is the work. If they'd thought a better way to promote the progress of science was to hang dead chickens from flag poles every Wednesday, perhaps they'd have done that instead. In that case, it's not the fowl entrails that would give the law its meaning.

If we could get lots of progress in the arts for free, without artists getting exclusive rights for limited times, do you think the framers would have prefered the RIAA instead?

Yglesias's discussion of whether the net amount of available music has increased is fundamentally misplaced.  Copyright does not make music "available"; it allows the producers of music (and other creative works) to earn a living off their creativity.  In other words, it lets them make money.

But isn't the whole point of providing financial incentives to encourage creation? That's what Yglesias is saying. The point of patents is not to make inventiors rich, it is to encourage invention. Suppose it could be shown that eliminating patents would have no effect on the extent of pharmaceutical research. Would we keep patents in place just so the companies could make more money?

Would we keep patents in place just so the companies could make more money?

Yes, because the alternative would be that companies would keep their research as trade secrets -- rather than sharing it with the world, and opening further areas of research.

But are patents and copyright even comparable? Patents make sense because they apply (or should apply) to durable goods.


You're making a circular argument. Bernard says the point of patents is to encourage invention, not gain money for the company. You respond that the point is to gain money for the company in order to encourage invention. Bernard's argument says "assume total invention is not hurt"; you can't answer, "aha, but then total invention would be hurt."

In some areas (specifically software) the "stealth patent" has promoted a form of trade secret. Companies acquire patent rights to relatively simple processes they have no intention of using and attempt to use the patent to bludgeon money out of companies that develop successful products that use similar technology. The patent search process doesn't go well with the software development process.

From Research Information Patent Searching

More worryingly, a quick and easy search on a free site is extremely unlikely to uncover 'stealth patents' - one of the latest IP protection tricks. The authors of stealth patents deliberately choose obfuscating keywords and try to have their patents inappropriately classified in order that others' searches do not throw them up. The reason? A stealth patent can be a handy source of income if, once the technology has matured, others unwittingly infringe it.

I'm a lawyer whose research specialty has been copyright law. Take that for what it's worth.

The commenters who have quoted Art. I, sec. 8, cl. 8 are getting at the key point. Copyright and patent were understood by the Framers as species of monopoly, something which they generally eschewed. In this one limited area, however, monopoly was held to be a necessary evil to incentivize the creation of new works. The tradeoff was justified by assuring that the monopoly would be granted "for limited times." Recall that the first American copyright statute - drafted by those who were present at the time of the drafting of the Constitution - set a term of 14 years (renewable for an additional 14 years, up to 28 years in total). Now, of course, copyright is virtually forever (life of the artist plus 75 years, until Mickey gets his knickers in a bunch again, at which time the term will no doubt be extended once more).

Also, re: the concerns of "distributors" (or publishers, as the Framers would have known them) - it is worth noting that the Copyright Clause almost exactly parallels the language of England's Statute of Anne, the first modern copyright law, except for one detail. The Statute of Anne provided that the monopoly would work in favor of authors, inventors, and publishers. Our constitutional drafters left that last bit out. Maybe that was an oversight - but maybe it wasn't.

But are patents and copyright even comparable?

No, they're very different.

"But P2P doesn't merely threaten large distributors; it threatens all distributors,"

P2P is distribution. Grokster is a large distributor. That's quite the opposite of threaten. What you seem to be saying is 'P2P threatens existing distributors by replacing them with a new one', to which the only answer is 'yeah, so? Welcome to capitalism'. You engage in the same fallacy the RIAA argues. . that the principle of intellectual property law is to protect the existing means of production and distribution, not simply production and distribution per se.

The Statute of Anne provided that the monopoly would work in favor of authors, inventors, and publishers. Our constitutional drafters left that last bit out. Maybe that was an oversight - but maybe it wasn't.

According to Lawrence Lessig, in his book "Free Culture," one purpose of the Statute of Anne was to break the perpetual hold that publishers had on the printing of literary works. Even though they were included, the Statute for the first time limited the term of copyright.

BTW, Lessig's book should be required reading for anyone interested in this topic.

I am reminded of comments that Free Dominguez made about how she can make a better living as an independent, self-produced artist selling 7,000 CDs than she ever could when she was with a label selling 100,000, and that at 10,000 sales she can live quite comfortably. I think that is probably true for the majority of musicians.

I think with P2P a lot depends on how much the independent artist is being hurt by people passing around their songs. If 100 people download your songs and only 10 buy your $10 CD, is that $900 stolen from you or $100 more for the band and 100 more fans to come to your show? Low overhead gives the independent a lot more flexibility. I'm guessing that piracy is less damaging to them in the long run, possibly even beneficial to the overall bottom line.

I know that I have a ton of mp3 files downloaded from band websites. I've bought some CDs as a result, and am donating to one independent label because I listen to their (free for download) CDs a lot when writing. They are not getting rich any time soon, but they are making a living and they are not going to go bankrupt trying to pay back the money they owe to a big label.

So I think P2P probably does hurt big label artists, and it "hurts" big labels in that it reins in their economies of scale and takes away their position of power at the choke point on the music economy. The companies will spread those losses out to the consumer and the bands as much as they dare. Meanwhile, the bands and labels that have a more flexible business model and lower overhead will see a small, but noticeable upturn in their bottom line.

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