This year for the Christmas holidays we took a road trip. We went to Lake Tahoe, then across the Nevada desert to Salt Lake City. It’s about an 18-hour drive total, but when you break it up with a couple of days of skiing in Tahoe, it doesn’t hurt quite so much. On that long drive, we decided to do something different. We listened to a book that we downloaded to an iPod, from Audible.com after purchasing it. This electronic version of a book sits on the hard drive, ready to be played just like the latest pop hit.
This provoked an interesting discussion about copyrights and the nature of works of intellectual property. The field of intellectual property covers the subject areas of copyrights, trade and service-marks, and patents. It is a field of law that is populated with very bookish, quiet lawyers — people who spend their lives ruminating over minute details and deciding if they infringe on the rights of their client.
A copyright is the right an author of a work of intellectual property has to a royalty for the copying, playing, or usage of their creation. It applies to authors of books, music, plays, movies and computer software. A trademark or servicemark applies to a brand name or phrase. Patents are ownership rights granted to a designer or inventor. All lawyers can handle copyright and trademark work, but patents require special lawyers. Patent lawyers are members of a special patent bar and generally they are engineers by their undergraduate training.
This is different from other lawyers, who are usually from the liberal arts and hold degrees in English literature, philosophy, or some other area of education that avoids math and numbers. The reason for this is simple — the law deals with definitions and distinctions, it is a system that depends on language, not numbers. This is also why most lawyers are not great with math, but do very well on crossword puzzles.
The world of copyrights has undergone a huge change in the past three decades, thanks to the copier machine, scanners, the Walkman, personal computers and CD players, and of course the latest and largest changes have come from the Internet.
In a society that values artistic expression, it is crucial to the continued development of the arts that a copyright be protected by the law. The problem is, it takes very little today to copy a recorded song or video from a hard drive, put it in an e-mail, and send it to 500 of your closest friends.
Historically the distribution costs would prevent most people from infringing on a copyright. If I wanted to send 500 copies of Cat Stevens’ “Peace Train” to my friends, I would have to buy 500 cas-settes, spend hours at a copying stereo, then mail the tapes individually. The time involved, and the cost of the blank tapes and postage is a sufficient deterrent to effectively prevent most people from doing this.
Today, I can copy a song to my hard drive, create an e-mail, hit the send button, and now all of my friends have become unwitting accomplices in an infringement on the copyright of the artist. It took five seconds and cost me nothing, and the author received no more income.
The recording industry is fighting very hard to prevent just this type of distribution and infringement. They are very concerned because this type of free flowing exchange is severely hurting their profits.
Contrast this with the purchase of a book. I can buy the latest Michael Moore book, read it, and then share it with 500 of my closest friends, and no one thinks that this is copyright infringement. For most of us, when we buy a book, that book is ours to do with as we please. The belief is that the author has no further rights to the physical embodiment of their ideas. In fact, for most readers, it is important to share a book and then pass it on.
Now compare that with the all too common practice of “sharing” software. After all, if you pay Microsoft $400 for a software program, why shouldn’t you be allowed to “share” it with your office-mates, best friends, neighbor and the dog catcher? The software manufacturers consider this to be piracy. I think that’s a misnomer because piracy is taking that which doesn’t belong to you. Clearly if you have bought something, it belongs to you, but the question is, what have you bought? With software, one buys a right to use a tool that is made up of electronic information.
If I share software with everyone, most people understand that I have overstepped the terms of the right that I bought. Most do it anyway but know it is wrong. But when I share a book, I am sharing that which is mine. When I share music that I have purchased, I am sharing that which is mine. But the question becomes, what are the limits, if any, to my ownership? If I have paid Dave Koz for his music and downloaded it, to what extent does it become mine? Is it fair I share it with the world via my hard drive and the Internet?
The Recording Industry Association of America is trying to stop the exchange of electronic music files. They are desperate to find encryption technology that will prevent the copying and distribution of artists’ works. This is not likely to happen. They want their business model to be more like the software industry where every installation is supposed to be paid for, but in reality it is more like the book publishing business where they expect only a portion of the users to pay for their product.
As MP3 players become more popular, as the Internet continues to become a greater force in our lives, it will become easier and easier for scofflaws to obtain their music and videos for free. The hard life of a performer is going to get harder as technology continues to make distribution easier and cheaper. Music has become as readily portable as borrowing a book. Musicians need to look to the world of writers to see their future incomes. The days of big profits, which rarely made it to the musicians anyway, are winding down.
Technology will always change the way that the music business operates. It is already becoming harder for musicians to get a contract. Because fewer independents can survive — which hurts the growth of our social music library — we are ending up with more corporately controlled music, centralized in one of the major labels, which are all fast becoming one company.
Historically when the Japanese and the Germans are getting along, it is not good for the world. Sony bought Bertelsman Music Group. Can the end of the music world as we know it be far off?
Originally published in the Santa Monica Daily Press print edition on January 6, 2004. Read the original PDF.