There was a very good article on the Million Music blog yesterday:
http://millionmedia.wordpress.com/2008/11/20/bloggers-vs-majors

This asked why music bloggers had changed from sympathy and tolerance toward major record labels to outright condemnation, and wondered if this had been due to the labels’ recent ‘assertion of their rights’ by exercising their powers under the DMCA that had resulted in people’s entire blogs being taken down rather than just an offending post.

So I commented thus:

Individuals (human beings) have natural rights. Corporations don’t, they have privileges.

Copyright is a privilege that suspends the natural right to cultural liberty (specifically the right to share and build upon published works) in order to grant a lucrative monopoly to publishing corporations.

The DMCA is simply an enhancement of powers granted to copyright holders.

So, the majors are not asserting their rights, but exploiting their privileges.

If anyone was going to assert their rights it would be individuals asserting their right to share copies of published music recordings.

Unfortunately, most file-sharers and people who publish blogs containing mp3 files don’t realise they have a right to do what they’re doing.

Users of Google’s ‘Blogger’ service are reliant upon Google, so really they should host their blogs themselves on their own PCs if they don’t want them taken down by those privileged by the DMCA.

The blogger agreed in a subsequent comment with my moral viewpoint, but invited my further explanation.

So I then suggested in a second comment that if the labels kept on using the DMCA (or EUCD) as if it were a cultural sniper rifle, that eventually they’d have so many victims that they’d prompt a rebellion, that the worms would turn – if they haven’t started already. Cultural participants will either develop bullet proof vests (defenses against the DMCA) or will shoot back (use the DMCA against the labels).

Shortly afterwards it seems (from my referral logs) that someone from Universal Music found the post and its comments so disagreeable that they’ve ‘persuaded’ the blogger to discontinue publication.

Time: 21 Nov 2008 11:06am
IP: 167.167.136.2
Host: ip-167-167-136-2.ukrom.umusic.com
Page: index.php
Referrer: http://millionmedia.wordpress.com/2008/11/20/bloggers-vs-majors/
Method: GET
Status: 200

Interesting times…

Mike Masnick introduces us to a great new work, the like of which I have not seen since the Grey Album.

Let us wonder why this musician ‘Kutiman’ may not have either prepared his derivative art or even obtained our reward without seeking the permission of all those whose work he sampled.

Even if each of his sampled videos was CC-NC licensed, this mixing artist may not receive a single one of our pennies without theoretically becoming liable to copyright litigation – unless they painstakingly obtain permission from each and every copyright holder.

Why should such permission be required?

Why must this artist’s liberty be so suspended? Why may we not even reward them for their excellent intellectual work? Kultiman has provided attribution and links to each of the constituent works, so it is not as if we’re discouraged in also discovering and rewarding the underlying artists.

Elexis Trinity

Juice Lee

If such art can only be created and rewarded outside the law, then we must look to outlaws for such art, and reward them as outlaws.

Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.

From comments on a P2PNet article entitled We are the walrus. Or, thank you Lily Allen.

Here’s the choice that Billy Bragg and others in the FAC (Featured Artists Coalition) face.

There are two perspectives that one can take with regard to the business of music recordings. Either the artist and production engineers are paid to make a studio recording and that’s the end of their interest in the matter – they have their money, the customer has their recording, OR the artist is a budding monopolist (their own record label) and will begrudge anyone who makes a further copy of their published recording who didn’t pay for it.

It comes down to whether you believe in copyright or not. Are you in the business of performing and recording music, or are you in the business of selling copies and broadcast privileges?

Do you believe that recording artists should be content that they have been amply paid for their studio recording, or would you go further and say that you will not rest until everyone who makes and sells or gives away an unauthorised copy (or performance thereof) is properly punished, and a severe deterrent is thus in place for anyone who even thinks of joining them?

It’s the difference between the equitable exchange of work for money, and the jealous guarding of a lucrative state granted monopoly.

The record labels are the ones in the business of selling copies and broadcast privileges. It is they who pay session musicians and studio engineers for their work, and they who say that should be the end of the matter. It is the labels who are in the business of selling copies and enforcing their monopolies, now to a draconian degree.

I suggest FAC should represent the artists who no longer wish the labels to pretend to represent them. FAC should comprise those artists who are indeed satisfied if they are amply paid for their studio recordings, AND that copyright is neutralised on those recordings such that the audience is then free to share and build upon them, without fear of prosecution or demands for royalty. FAC should comprise those artists in the business of performing and recording music. It should not comprise artists interested in getting into the business of selling copies and broadcast privileges (that business is ending).

FAC’s customer is their audience, their fans. FAC’s customer is not one or more record labels.

Sell your live and studio performances, and the recordings thereof.

That’s as far as you can go.

You can’t sell copies of those performances or recordings without a monopoly that suspends the liberty of your audience to make such copies themselves. It is that 18th century suspension of liberty that is so unethical. The audience and artists among them have a fundamental, natural right to copy and build upon mankind’s culture. It is that right to copy that was suspended three centuries ago and granted as the exclusive privilege of the ‘copyright’ holder. So you should recognise that this right to copy does not belong to the musician, but to the individual, to the members of the audience, to the public, to everyone. Be careful before you start talking quite so possessively in terms of your copyrights.

Sell your recordings. Do not sell uncopyable copies.

You’ve sold your recordings to labels for years, so it’s not like you’re unfamiliar with the concept. Start selling them to your audience instead.

Treat your audience like your new record label. They will take care of A&R, promotion, reproduction, and distribution. That’s why the labels are squealing blue murder – because their customers for copies are now able to disintermediate them and make their own for nothing. However, that shouldn’t upset you because you’re not in the business of making and selling copies. You’re in the business of making and selling music, performances, recordings. Your paradigm shift is that you’re now selling to your audience directly instead of via a record label. But, critically, your audience can’t make your music instead of you. That’s why, unlike the labels, you’re not confronting the inevitable end of your business. So you don’t need a law to prohibit your audience making their own music instead of paying you for it. You certainly don’t need a law prohibiting your audience making and distributing copies. Heck, unlike record labels, your audience aren’t even charging you for that service.

So, what’s it going to be?

Is FAC going to stick to the business of making and selling music?

Or is FAC going to continue this nonsense of ‘educating’ their audience against making unauthorised copies?

What business is FAC in? Music or copies?

Billy Bragg replies:

Crosbie,

Thanks for offering your opinion of the state of play. I have to tell you that I don’t agree.

For instance, you can’t tell me “That’s as far as you can go”, no more than I can tell you you can share these files but no more.It simply doesn’t work like that. Who knows what means I might have of finding a niche where I can sell my work directly to people willing to pay for it? I doubt the new models for doing business will be either/or.

Your stated position is that of a diehard P2P user. In some ways it echoes the comments that FAC get from diehard record industry executives. Both of you expect us to be on one side or the other and are quick to condemn if we don’t show the same dedication as you do. Well, Crosbie, I have to tell you that FAC aren’t one your side to that extent – neither are we on the side of the labels. We seek to represent the third component of this relationship, the voice of the artists. What we want to do, as you’ll see from our website, is to ensure that artists can continue to make a living doing what they love most – making music. I’m talking especially here of new artists. We see it as being in all our interests to open a dialogue between the various parts of the new digital industry. As a result we talk to labels – Big 4 mostly – and we talk to ISPs. We talk to the Musicians Union in the UK and to the songwriters and producers unions too. We have so far never been able to have an ongoing dialogue with the P2P community, which is why Jon’s initiative is so interesting. If we can start to build confidence in this process, I believe that we all will benefit from your input.

Billy, I’m not telling you “That’s as far as you can go” as an edict, but as friendly advice to inform you and others in FAC as to your natural limitations.

I’m trying to help you realise that you can only hope to sell that which people are interested in buying from you.

Of course, you can try and sell copies if you want to. You can even attempt to enforce your monopolies against those who would promote your music to their friends by making and distributing unauthorised copies. You can try to do that, but I don’t recommend it as a business to get into because it doesn’t have a future.

To say you cannot sell snow to Sami, or sand to Saharans, is not a forbidding, but business advice.

I’m trying to tell you in the nicest way possible that you can’t sell copies to your audience.

I vaguely recall there was some ludicrous legislation in a South American country a few years ago that made it illegal to collect rainwater in order to protect the revenues of the local water supply companies, but really, to think that legislation against copying is going to create you a market to sell copies, is something either a pre-schooler or a mafioso would come up with as a viable business model. When the heavies are the state, and only a very few printing press owners can make copies, then perhaps such a protection racket has a hope of working, but those days are over.

If you read my previous comment again, more carefully, you will realise that I’m in complete agreement with you that you can sell your work directly to your enthusiastic audience willing and able to pay for it. But you don’t seem to be able to read that in what I write. All you can see is that I’m telling you that you can’t sell copies of your work.

I neither represent artists nor audiences. I champion individuals and their natural rights, against the anachronistic privileges granted for the benefit of publishing corporations. We are all artists, and all members of audiences of the artists we appreciate. Artists are individuals, as is everyone in an artist’s audience, so I champion all, indistinguishably. All have the same rights. None have rights that others do not. We are all equals on this planet. It is the anachronistic privilege of copyright that interferes with that natural equality. It is that privilege that sets publisher against public, artist against audience, and that privilege that should be abolished.

However, that’s just my position. What is of concern here is the position of FAC and its members.

The choice I’ve suggested that faces you is not whose side you are on, but what business you are in.

Are you in the business of making music, selling compositions, songs, performances, and recordings, OR are you in the business of making and distributing monopoly protected copies and broadcasts thereof?

When you’ve decided what business you’re in, perhaps then it will be clearer to you whether you need to sue your customers for disrespecting your monopoly, or whether you should explore ways of selling your music to your audience instead of to record labels.

It’s one of those red pill/blue pill dichotomies. Bear in mind that the software industry is already well divided by such a schism, and those on each side regard the others as having an alien mindset. That’s how deep the paradigm shift goes.

Don’t write it off as ‘freeloaders wanting stuff for nothing’ – that’s pure propaganda. We’re talking free as in speech, not as in beer. This is the cultural liberty of an emancipated people, not an impoverished and culturally stagnant cultist commune.

So, have you made up your mind yet?

Music or copies?

Billy Bragg replies:

Crosbie,

This two pill thing…. its not such a black and white issue. Many musicians do both and manage to make a living. I know it would make things much more easy for you if you could force me to chose between music or copies, but we’re going to have to be a little more open to debate if we want to create an environment in which P2P is recognised as a powerful promotional tool. That’s what I want from our discussions here. You interested?

Billy, I’m always interested in discussion of the issues and progress toward solutions, especially where solutions restore people’s liberty to share and build upon published works, and enable people to exchange their labour in a free market.

I daresay there are many who would like to portray this clash of perspectives as an encounter between artists trying to make a decent living and a den of thieves. It’s a little more fundamental than that. It’s a conflict between unnatural law that says that information can’t be copied and natural law that says it can. The outcome of that conflict is obvious to anyone familiar with the schism concerning geo vs heliocentricity.

What we’re left with is the problem of a lack of facilities that enable artists to exchange their work for the money of their audience. It’s a problem caused through the neglect of three centuries, a period in which no-one needed such facilities because of the reproduction monopoly known as copyright. Artists sold their work to printers, and printers sold copies that no-one else could legally produce. Copyright didn’t have to be legislated, but it was, and as a consequence the evolution of facilities for exchanges between artists and their audiences ground to a halt.

That’s why I’m trying to be upfront with you that this is the situation. We are all interested in how to buy and sell intellectual work in a world in which one can no longer sell copies at monopoly protected prices. If kids can make copies for nothing, you’re not going to be able to change that through holy fiat, education, or bandwidth squeezing, and so you’re not going to be able to sell them copies. Fortunately, kids can’t make your music (at least not without years of effort), so you can at least sell them that.

If this rapprochement is to discover how to stop kids file-sharing you’re barking up the wrong tree. If it’s to discover how to sell your music to your audience, well, come on up.

Glyn Moody beseeches Won’t Somebody Please Think of the Orphans?

Clearly, the fundamental issue of preserving our cultural heritage is being neglected in favour of either protecting the privilege of copyright against inexorable, pragmatic dilution, or squabbling over the imagined treasure Google must have scryed in the fruits of scanning vast libraries of printed works.

It’s a combination of Idiocracy and the deplorable destruction of the Ancient Library of Alexandria.

In other words, we’re looking at the moronic perpetuation of a culturally counter productive privilege by morons for morons (publishing corporations), simply because it helps their bottom line and damn the preservation of mankind’s cultural commonwealth.

In the case of orphan works, instead of being unwitting arson, it’s more like the slow fire of rust, i.e. the irresponsible neglectfulness typical of kids who leave their bike out in the rain when they’ve been distracted by something more worthwhile, but who will scream blue murder if they see any other kid lay a finger on it.

Far better to harness the vast information storage resources we have to store great numbers of redundant copies, than to leave the last remaining books or manuscripts at the mercy of ‘Soylent’ caretakers still deliberating as to which shelf should next be emptied to stoke the building’s central heating furnace.

This is why Google’s book scanning should be embraced irrespective of any handwringing angst over the potentially unauthorised copies so made.

What would people prefer in a few decade’s time?

1. The preservation of unethical legislation that prohibits unauthorised copies, OR
2. A digitally preserved cultural heritage that also includes printed works?

Sod the printers’ prerogative, what’s the point of them publishing mankind’s knowledge if their petulance prevents its preservation?

We need to have a Fahrenheit 451 day, where in an act of civil disobedience people bring out their book scanners and wilfully take pains to preserve that which a corrupt state has prohibited them from preserving.

Then we’ll see the police come out and burn these unauthorised copies, in just as corrupt a fashion as Amazon withdrew copies of unauthorised books from its Kindle.

Does it really take this sort of symbolism before people recognise that copyright is a corrupt constraint of their culture?

The worm is turning from a cultural sloth into a cultural insurrectionist. There is a rebellion afoot, where artists and their fans are now reasserting their natural rights and deciding to do business with each other directly. It is a movement to escape the shackles of the publishing corporations’ unethical privilege of copyright, to escape from the indentured penury of publishers’ deceptive contracts.

This is the end of copyright, and the disintermediation of those who would use it to extort and abuse the people.

This is the beginning of the digital renaissance, a new enlightenment that rediscovers the natural relationship that should exist between artists and those who appreciate them. One that existed until it was corrupted by the cultural constraint of copyright in the 18th century, and is now all but suffocated by the pervasive and insipid pulp produced by the multinational publishing cartels.

And to mark this beginning a new website has arisen, a2F2a.com, a site prompted by the historic rapprochement between Billy Bragg (FAC) and Jon Newton (P2PNet), to discuss, deliberate and document this more natural way in which artists can relate to their fans, and those fans can relate to their artists. A kind of relationship that is prosperous without being exploitative, and one that not only embraces the radically different economics of the digital age, but also necessarily restores the people’s cultural liberty.

However, just as people should no longer be dismissed as couch potato consumers to be fed the lowest common denominator, we must also recognise that we are all artists and all fans. We may well sometimes be fans of more artists than we have fans of our own, but fundamentally we are more than simply an either/or ‘artist or fan’, we are all individuals. The term ‘artist’ or ‘fan’ denotes a role or relationship, not a political status nor a social caste.

• As creative individuals, we are all artists and many of us would welcome a financial incentive to produce our art.
• As individuals appreciative of creativity, we are all fans and would be pleased to offer our favourite artists a financial incentive to produce their art.

We have to get back to such fundamentals before we can recognise that the traditional recording and publishing industry we see falling into decay and corruption before us had been built upon expedient foundations of 18th century permafrost – the treacherous foundations of unethical privileges that have now melted into a stagnant swamp that impedes all cultural progress.

The structures we build from this day forth to facilitate a more natural and ethically sound relationship must be built back on the same bedrock that mankind’s cultural heritage has been based on since the stone age and as relatively recently as the 14-16th century European renaissance.

We need to get back to an ethical incentive: money for art, liberty for people.

On the new a2f2a website Billy Bragg asks me “Why do you believe you have a natural right to share and build upon the published music you receive without having to seek permission, or pay any tax or royalty?”

To me this is akin to asking me why I believe the Earth is spherical.

It is not an unreasonable question, especially if we simply take what we’ve grown used to at face value as ‘the way things are’. Consequently, for the Earth to be flat doesn’t seem particularly unnatural. However, if you take any time to investigate things in depth, just as you realise that the Earth can’t possibly be flat, you realise that one can’t possibly have a natural right to prevent others making copies of anything that you give to them.

Just as a basket maker has never naturally been able to prevent those who purchase their baskets from making copies or using them to carry silver without a cut, so a songwriter or musician has never naturally been able to prevent those who hear their songs or tunes from singing or performing them, or doing so for money without royalty. It has always taken a potentate and their police force to do such things, e.g. prohibit the wearing of imperial colours or collect a levy on wine. Individuals naturally born as equals are not born with such a privilege of dictating what other people may or may not do with the things they have made, purchased, or discovered (irrespective of similarity to, or provenance from, any other). Even the power of collecting a tithe, levy, tax, or royalty takes the power of a church, baron, or king to achieve.

Natural rights are those powers or abilities to defend their interests that individuals are born with (as equals), i.e. the power to protect their lives (their bodies), their privacy (and the possessions within it), the truth (their apprehension of it against deceit or impairment), and their liberty (against the will of others). Rather than solely relying upon each individual’s physical strength these natural rights are supposed to be additionally and fairly protected by a government empowered by the people precisely for this purpose. Such a government is not empowered to grant privileges (though sadly, by dint of the power they can assume, they do anyway).

In 1710 Queen Anne suspended from individuals’ natural right to liberty their right to copy or perform the original works of others. This right to copy was reserved as a transferable privilege initially attached to each original work, hence ‘copyright’. In effect the individual’s inalienable liberty had been alienated from them by the state to serve both the state’s interest in seeing political expression controlled, and the interest of the stationers’ guild in continuing their members’ monopolies (especially as legally enforceable). Neither state nor guild was interested in their power or profits being undermined by the propaganda or piracy of an uncontrolled press.

Three centuries later, we are still born with the natural right to copy or perform the original works of¹ others, but there now exists a privilege known as ‘copyright’ that enables the holder thereof to exclude us from doing so. Government via the police protect our natural rights, but they do not protect privileges. This is why the police aren’t supposed to arrest people for singing songs against the copyright holder’s wishes or making recordings at concerts and selling copies thereof. The responsibility and expense of policing and asserting their privilege is entirely that of the copyright holder. Well, it has been until relatively recently. The publishing corporations are lobbying for their privilege of copyright to become as protected by the state as any natural right of an individual. Such privileges are also known as legal rights, since whilst they appear to recognise a right, that right does not arise in nature (to be protected by law), but arises only from the law itself (protecting the state’s, crown’s, or lobbyists’ special interests).

So, all discussion of the legal rights artists may still need or those that might remain lucrative to them, even if copyright’s ability to exclude unauthorised copies is largely ineffective, are misguided. Ethically, people can only ask for the protection of the natural rights they have, not those privileges they may covet or believe they need to make a living. They should certainly not be tempted to adjust one privilege into another, e.g. if one’s privilege is no longer able to prevent copies made by another, one should be given the privilege of extracting a royalty from another, if their business involves the use of one’s work.

The distinction of natural right from state granted privilege is not new thinking, but was well known even as the US Constitution was being framed in 1787. See the WikiPedia entry concerning the work Rights of Man by Thomas Paine:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

The US Constitution correctly recognised that authors and inventors have a natural exclusive right to their writings and inventions (where exclusive – deriving from the individual’s natural right to privacy). However, while this right should certainly have been secured, it should never have been extended or substituted with the grant of monopolies. It just goes to show how appealing monopolies are to those interested in them that they were legislated anyway (in 1790), in spite of the Constitution.

What we see today is that copyright is not only a privilege that conflicts with individuals’ natural rights (their cultural liberty and freedom of speech), but a privilege that conflicts with the very nature of information and its communication. It is simply not possible (even for the state, let alone an individual), to remotely constrain the distribution of intellectual works, because it is not possible to remotely constrain the communication and diffusion of information (despite the snake oil that is DRM).

So, it is foolish to suggest either that copyright’s term is shortened (to 28 years, 28 weeks, or even 28 days later), or that those whose business may be seen to benefit from the use of another’s work should pay a share of their earnings. Such privilege is preposterous and an offense against both nature and man. It is a protection racket of those already corrupt and powerful, or of those who have become corrupted by unnatural power.

We earn a living from our work by exchanging it with the work of others, voluntarily. Money=work. There’s nothing wrong in exchanging our labour, in selling the music we make or the copies we make of others’. What’s wrong is in being unnaturally able to prevent anyone else doing so, or being able to demand a royalty. What we have a right to is the free exchange of our work or possessions (liberty). We do not have a right to give our work away and then demand payment for its possession, use, or reproduction. Such a ‘right’ would be appealing, but nature has not seen fit to imbue us with it.

Without unnatural monopoly, we’re still left with the natural ability to sell our music, and the ability to make and sell copies of it. However, there is no market for copies that people don’t need to buy (that a monopoly can no longer prevent being made). The market for musicians is in making music that people want to buy (in preference to, or in addition to, making their own).

The market for copies has ended. The market for music continues unabated. There is neither need nor sanction for monopoly or any other privilege.

I and umpteen thousand others may pay you a penny to write or sing a song, and you may consider that an equitable exchange. However, my audience can also pay me to sing that song and I don’t owe you a penny – naturally. That’s how it used to be, and that’s how it should be. We just have the embarrassment of three centuries in which we put up with a state granted privilege that had it otherwise.

_________________________

¹ That’s ‘of’ as in ‘authored by’, not as in ‘owned by’. It is an unfortunate ambiguity of the English language that possessive prepositions and pronouns are used for authorship/paternity as well as ownership or physical possession, especially when there’s considerable interest in some quarters for the meanings to become permanently conflated.

In Transformative Vs Incremental Change Steve Lawson produces a good summation of the crisis facing the recording industry, and why this isn’t a crisis for the artist, but an opportunity (one that publishing corporations do not want artists to take).

When you take an industry that has 4 big costs – recording, manufacture, distribution, promotion – and remove 3 of them, that changes everything.

Costs have been removed from the picture, but this only represents a loss in revenue to the publishing corporations – not to artists. Artists can now take advantage of this all being done for free – instead of signing to a label in order pay them their rates that were inflated in the first place.

Both ends were overcharged. The fan was overcharged for a copy, and the artist was overcharged for the label to produce, promote, distribute, and retail their art.

Now that the extortionate costs have been removed, what will happen when both ends meet directly?

Advertising is completely broken. Recording tech is better and cheaper than it has ever been, fans are more and more willing to talk about and share your music, and far more happy to buy physical product from you than from a third party. Website merch is easy to do, either in short run, big order or even one-offs.

The record industry before the internet was built on the assumption that to have a chance of making it ‘big’, you needed to have deep pockets to risk the kind of gambling collateral needed to have a shot at being in the 0.1% who ended up rich. The labels funded their gambling by owning the services they were charging you for, by keeping you in debt so they didn’t have to pay you, by keeping product prices artificially high, and by perpetuating myths about what it was that we all wanted and needed, as both artists and consumers.

Everything has changed. If you look at the current possibilities as an incremental change to the industry – that is, if you see the infrastructure as still being the same, and see MP3s as ‘invisible CDs’, you are truly truly screwed. It’s awful. That’s why the industry says ‘the sky is falling’. They aren’t willing to let go of that old infrastructure.

If you see the real changes, throw all the cards in the air, and realise that instead of hundreds of artists making millions of pounds, we can how have millions of artists making hundreds of pounds (and a straight, shallow line on the curve up from there), we’re all in good shape.