A very well documented backgrounder on the issues, facts and positions on how the world of digital distribution would look going forward is provided in a research paper from Lynette White and Sean Elliott, two Australian researchers, titled “Large-scale Copyright Infringement: the Inevitable Consequence of the Digital Age”. Below is an excerpt from some elements descriptive of the issues at play in the multi-modal revolutions occurring (the whole paper from 3 June 2001 is a must read for the context and background on the shift towards accepting the importance of the digital realm on content, content distributors, and content consumers [though they do seem to make several judgmental, seemingly unreferenced statements regarding their asserted “motivation” for copyright violations, I was unaware that human nature had been distilled to a set of theories]). First as Eliot and White define the stakeholders, they see three prime interlocutors, each with different interests, power, and stakes, but each being key to the continued existence of each, and the others;
The user — the target audience for Shawn Fanning was college and university students, and they are probably the largest user group of Napster. A characteristic of this part of the population is high computer literacy.
The artists — Alanis Morissette and Don Henley are two that have spoken out about the artists views, in a debate that has largely over looked their perspective, and focused strongly on the user, and the music industry.
The industry — music publishers, and music recording companies, the big five companies are EMI, Sony, Universal/Vivendi, AOL Time Warner, and Bertelsmann.
Eliot and White perceive the digital distribution conception as a revolution, potentially akin to the societal reformations, and economic landscape reshaping which came parceled with the industrial revolution. Here, they describe the roots of the coming, and still occurring changes;
The inevitable revolution had its seeds in three areas. The introduction of the digital medium has made it possible for music to be successfully distributed without loss of quality. The networked media meant that a greater number of people had easy access to digital music, and facilitated simple distribution. Finally, human nature has contributed, as “there is no way that anyone can fight technology that gives us more instant gratification with less energy expended.” 1)The nature of the digital medium, 2)The nature of digital networks, 3)Human Nature
To understand where we are today in terms of the discussion of copyright material, and open access one must first go back to the service that brought the idea of digital distribution into the mainstream consciousness;
In 1999, an 18-year-old college dropout named Shawn Fanning changed the music industry forever with his file-sharing program called Napster.
His idea was simple: a program that allowed computer users to share and swap files, specifically music, through a centralized file server. His response to the complaints of the difficulty to finding and downloading music over the Net was to stay awake 60 straight hours writing the source code for a program that combined a music-search function with a file-sharing system and, to facilitate communication, instant messaging. Now we have Napster, and people are pissed.
Perhaps the most under-examined issue is the complex labyrinth of the large media publishing corporations, and their eager conglomeration; yes, we can generally all agree that artists starving and dying in the poor house is not a positive outcome. When we learn that artists are starving not only because of so-called pirates, suddenly the behaviors, actions, and arguments of the publishing side of the equation become more worthy of a second glace with a critical eye (was the “piracy generation” really just the “fault” of bad parenting, or a ‘vile’ selfish human nature excuse? Are there perhaps two [or even three] dancers at the pirate party ball?). A wider perspective may come to recognize that in the zeal of “protecting artists” (generally conceived of occurring by protecting ‘profit margins’), the publishing groups built a system which was so entrenched and resistant to change, advancement, or evolution that it cast innovators, and entrepreneurs as “bad guys”, and criminals, rather than partners; as everyone came to do once “apple itunes Music Store” joined the digital distribution jig on April 28, 2003, with ten billion sales in under seven years http://www.apple.com/pr/library/2010/02/25itunes.html
Some recent data, and artist anecdotes actually suggest that the RIAA, and other industry bodies worked counter to the interests of the actual creative people (not to mention the modern societies which benefit the most from a healthy, thriving creative culture); by complex licensing schemes, where artists can receive nothing for uses of their material on soundtracks, and other multi-media projects, or “Hollywood” accounting (the well documented practice of claiming “losses” on properties which make blockbuster profits [http://www.guardian.co.uk/film/2001/aug/31/artsfeatures, and also a wide variety of case studies may be found here, http://showbizmanagementadvisors.com/Hollywood%20Accounting%20-%20Case%20Studies.htm]), using “artist advances” like drug dealers use “Free” drugs (particularly hooking young, and new artists on extravagant lifestyles, not making clear how much the artist actually owns, and leaving the artist footing the bill [or rather, paying off the bills constructing complex contracts demanding multiple albums, on a schedule, ultimately leading to many poor albums, rushed artistry, artists pushing out disposable quality material just to satisfy contractual obligations] for several quotes from artists on the issue see this roundup of several comments on “file sharing”, http://new.uk.music.yahoo.com/blogs/touchingthevoid/34747/liam-backs-pirates/).
What was shown to clearly be a profitable, and stable business model by the apple itunes music store was resisted, and even trumpeted as a death knell of all creativity under Napster. Once the illegitimate, or biased, and often misleading rhetorical flourishes and arguments of the RIAA were disposed of, or rather, pushed aside, it became more and more clear that a majority of people were absolutely willing to pay their favored creative artists for access to the material – if they were offered the opportunity, as the RIAA had forcibly denied them for a period from the late 1990’s until around 2003, a period of several particularly pernicious and vicious “anti-pirate” lawsuits, this period was one of the worst for the reputation of the recording industry, “The record companies have created this situation themselves,” says Simon Wright, CEO of Virgin Entertainment Group, which operates Virgin Megastores (from a Rolling Stone article which has fallen into the pit of broken links on the internet, which I was able to make accessible using the incredible “Memento Project”, http://memento.web.archive.org/memento/20070626045150/http://www.rollingstone.com/news/story/15137581/the_record_industrys_decline/print).
What fans showed the industry they were not willing to do was to operate by the terms what amounts to basically massive multinational content packagers. The “piracy” waves of the late 1990’s, and early 2000’s put on display a consumer body which was willing to step “outside” the law, and the “established” norms of the business model that the record companies desired. People, whether cognizant of the legalities or not made it known that they had seen a new way of accessing various cultural artifacts (digitally), and they were no longer willing to be gouged on the prices, and sub-par failings (optical media is useless with even the most minor imperfection [show me a 10 year old CD with no scratches, and I will show you a CD that has never been used, even then, I have seen brand new optical media with fatal imperfections], while digital media takes much more abuse to degrade quality, if at all) of Compact Disc albums, or Digital Video Disk movies, or DVD based PC games (and the associated rootkits, ‘anti-piracy’ measures, password encoding, and other value reducing measures which made it more difficult for legitimate owners to enjoy the media they legitimately purchased, while, on the other hand, pirates got a much more pleasurable, non-invasive, non-debilitated experience [see Appendix 2 for a visual example of this “lower quality to those who actually pay for media”] also an experience which didn’t accuse the user at every turn of piracy, and a litany of “just in case you are actually an evil pirate” warnings, and pre-emptive countermeasures).
This detailed summary of the events provided by the University of Florida Interactive Media Lab (where students have been creating online digital projects since 1994), from the spring of 2001 allows for an examination of the timeline, and addresses some of the prevailing positions of the time;
On March 5th, 2001, Judge Marilyn Patel issued a revised injunction consistent with the February 12th decision by the Ninth Circuit Court of Appeals in this case.
While compliance issues and other matters continue to be sorted out in the aftermath of these rulings, many Netziens have continued their file sharing practices via the Gnutella Network.
Highlights of the March 5th Injunction
· Napster is enjoined from “engaging in, or facilitating others in, copying, downloading, uploading, transmitting, or distributing copyrighted sound recordings…”
· However, “the Ninth Circuit held that the burden of ensuring that no copying, downloading, uploading, transmitting or distributing of plaintiffs’ copyrighted works occurs on the system is shared between the parties. The court ‘place[d] the burden on plaintiffs to provide notice to Napster’ and imposed on Napster the burden ‘of policing the system within the limits of the system.’
· The Record Industry Plaintiffs must “provide notice to Napster of their copyrighted sound recordings by providing for each work: (A) the title of the work; (B) the name of the featured recording artist performing the work (“artist name”); (C) the name(s) of one or more files available on the Napster system containing such work; and (D) a certification that plaintiffs own or control the rights allegedly infringed.”
· “All parties shall use reasonable measures in identifying variations of the filename(s), or of the spelling of the titles or artists’ names, of the works identified by plaintiffs. If it is reasonable to believe that a file available on the Napster system is a variation of a particular work or file identified by plaintiffs, all parties have an obligation to ascertain the actual identity (title and artist name) of the work and to take appropriate action within the context of…[the March 5th]…Order.”
· “Once Napster ‘receives reasonable knowledge’…of specific infringing files containing copyrighted sound recordings,” it shall, “within three (3) business days, prevent such files from being included in the Napster index (thereby preventing access to the files corresponding to such names through the Napster system).”
On the “other side”; a clear statement of the ideas, and history behind Napster were on display when Napster’s interim CEO Hank Barry addressed congress April 3, 2001 following the court injunction of a month prior;
Finally, the Napster community says loudly and clearly that it wants artists and songwriters to be paid. I think that the license you create should include a direct Internet rights payment to artists. There is certainly precedent for this in the so-called “writer’s share” of public performance (radio and television) payments that are collected by ASCAP and BMI. As you know, a portion of those payments goes directly to the songwriter.
Senator, this is a moment of tremendous opportunity. For many years, our nation and this Committee heard wonderful promises of an emerging Internet music era, where people could have convenient access to the entire catalog of recorded music over the Internet at the touch of a button. Well, as often happens, history arrived ahead of time.
And it is a uniquely American story. A young man with no standing, no credentials, no connections, and no plan for placating the powerful, sat down outside Boston and created an entirely new system.
Within 18 months, we were no longer debating whether there would be music on the Internet, but rather debating the best way to make sure that it continues. More than 60 million people have started a new stage in our national love affair with music. All of us are finding new music – and music we’d forgotten how much we loved.
The question before this Committee is a matter of policy: how to make this new world of Internet music work. The next step should not be shutting it down. The Congress has effectively promoted new technologies in the past, while ensuring that creators benefit; it is essential that you do so again today.
Copyright requires a constant balance between the public’s interest in promoting creative expression and the public’s interest in having access to those works. This is a balance that has often proven impossible to find without the help of the Congress.
The issues surrounding digital pedagogy are intimately bound up with the topic of copyright, and open access. The topic appears to be much more dominated by rhetoric and bloviation when the focus is solely on addressing the “stealing” of the newest hot pop music. But when one steps aside from the red herring that is “pop-music piracy”, and begins to examine the wider ideas behind open access, and the new realities of digital distribution channels, the realities of digital pedagogy, and the rising importance of the digital realm to society, it becomes apparent that digital music access is merely one of a myriad of topics that demand attention, open discussion, and dialogue. Among the millions of people accessing digital tools, and digital resources, the listening of their chosen cultural artifacts is but one use; within which, yes, some people will just want the new “hot” Britany Spears or Metallica single for free (one might wonder, is this stolen single a “lost” sale? Would the pirate have actually purchased any of the songs they have?), and stealing certainly is easier today, to get the new single, compared to trying to steal a physically manufactured product, which was transported to a music store, which pays employees to stock shelves and perform sales tasks, some people simply will not care if they harm the artists, and the support structure that creates such mega-stars, and allows for the infrastructure of the content industry. But then, can we see the “pirated single” sort of like the “radio broadcast recorded to a home tape player” as many respectable, honest, and legitimate people openly admit doing in the bygone analog era.
Here, at this point we must seek to examine the RIAA claims, just what is the scope of the problem according to the RIAA (See also Appendix 3 for a chart on bandwidth usage by use function, as determined by the 2011 Envisional study)?
Music theft is a real, ongoing and evolving challenge. Both the volume of music acquired illegally and the resulting drop in revenues are staggering. Digital sales, while on the rise, are not making up the difference.
Consider these staggering statistics:
-In the decade since peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S. have dropped 47 percent, from $14.6 billion to $7.7 billion.
-From 2004 through 2009 alone, approximately 30 billion songs were illegally downloaded on file-sharing networks.
-NPD reports that only 37 percent of music acquired by U.S. consumers in 2009 was paid for.
-Frontier Economics recently estimated that U.S. Internet users annually consume between $7 and $20 billion worth of digitally pirated recorded music.
-According to the Information Technology & Innovation Foundation, the digital theft of music, movies and copyrighted content takes up huge amounts of Internet bandwidth – 24 percent globally, and 17.5 percent in the U.S.
-Digital storage locker downloads constitute 7 percent of all Internet traffic, while 91 percent of the links found on them were for copyrighted material, and 10 percent of those links were to music specifically, according to a 2011 Envisional study.
While the music business has increased its digital revenues by 1,000 percent from 2004 to 2010, digital music theft has been a major factor behind the overall global market decline of around 31 percent in the same period. And although use of peer-to-peer sites has flattened during recent years, other forms of digital theft are emerging, most notably digital storage lockers used to distribute copyrighted music.
Where the rhetorical flourishes of the RIAA fall apart however, are in the claims, and assertions that “all people looking for digital files” were simply thieves, cheats, and criminals. When we step past the “pop” nature of some of the traded files, which is used to argue that there is “no value”, or “mindlessness” in that which was traded, particularly on the original Napster, and being cracked down on in much the manner that faced first music traders, then movie traders, then ebook traders, and now scholarly research traders, as we see that academic work is also now traded. And now here, the focus turns to digital pedagogy, and the importance of open access to the education systems of today. How “experimental” will teachers be, in sharing ideas, and links not vetted by a lawyer, above students “grade level”, or as further readings; will teachers feel brave, and share, and discuss online, or openly, the ideas of the most current academic work? Or are teachers more likely to retreat, and be terrified of “slipping up” in the realm of copyright (was that 10 pages or 10 % of a work; is it 10% of the work if it originally was in a book, but was republished as a standalone article?) particularly when the potential fines are not “small”, but rather exorbitant, possibly career ending, and bloated massively beyond the “cost of access”. And it has been happening since I was in elementary and high school, teachers would have access to ideas and messages which were important to helping students grow into good citizens, able to comprehend, and interact with the complex ideas being taught, but they were “afraid” of simply sharing these materials with their classes, because the legalities were simply to complex, and no, teachers were trained as teachers, in pedagogy, not as lawyers, so it is bizarre that our modern society seems to demand legal knowledge in realms which are hindered to the point of restriction by the legal labyrinth involved (seeing young people making “dancing in apple stores” videos, or the prime example, referenced work (and best displayed in the “Tales from the Public Domain:
BOUND BY LAW?” available here with open access; http://www.law.duke.edu/cspd/comics/) and facing legal challenges for not having “cleared” the annoying background music (which happens to be pop song X); how is it promoting creative works, reinterpretation, cultural growth and evolving ideas when new takes on old ideas are relegated to either being described as deprecated derivative secondary works worthy of sneering, or simply criminal, entombed in legal labyrinths.
A documentary is being filmed. A cell phone rings, playing the “Rocky” theme song. The filmmaker is told she must pay $10,000 to clear the rights to the song. Can this be true? “Eyes on the Prize,” the great civil rights documentary, was pulled from circulation because the filmmakers’ rights to music and footage had expired. What’s going on here? It’s the collision of documentary filmmaking and intellectual property law, and it’s the inspiration for this new comic book. Follow its heroine Akiko as she films her documentary, and navigates the twists and turns of intellectual property. Why do we have copyrights? What’s “fair use”? Bound By Law reaches beyond documentary film to provide a commentary on the most pressing issues facing law, art, property and an increasingly digital world of remixed culture. This book is available under a Creative Commons Attribution-NonCommercial-ShareAlike license. This license allows you to translate the comic for free – read the Portuguese translation, the French translation, or the new Italian translation of the comic!
Provided with avenues to pay musicians (itunes music store, amazon music stores, soundcloud, Last.FM, The SixtyOne, StereoFame, and numerous multiple competing services [including the phoenix-like reborn legal Napster], once a method of payment, or avenue for giving back to artists was provided, the evidence shows that people desired to financially support their favorites, and were more than willing to make payments in exchange for access to their choices of music, on their terms; i.e. files unencumbered with malware (as Sony BMG was found to have placed root kits on many of their Compact Disc releases [http://www.wired.com/politics/security/commentary/securitymatters/2005/11/69601] which, if any old black-hat hacker had caused to be installed, would most certainly land fines, jail time and more), or other examples of malicious, and otherwise computer harming software DRM (Digital Rights Management),
I suppose no rational argument matters to some; according to the RIAA; “There are more than 13 million legal tracks online today” (http://www.riaa.com/toolsforparents.php?content_selector=legal-music-services). They then list numerous services licensed by the major record companies to sell music online, is this new reality in contradiction to their “creativity apocalypse” warnings of the last decade, and plastered all over their site and associated materials? The RIAA is now selling the model of digital distribution (at approximately fair prices) that the first generation labeled as “pirates” tried to force on the music industry. The RIAA has gone from calling people criminals for considering this model, and trying to force this model, to embracing the very same models of digital distribution and sale. Because all along besides the “music just wants to be free” crowd, the backbone of the “digital distribution” argument was actually all along considering the centrality of importance in paying the artists. It was only the RIAA who cast the events as doom and criminality run rampant. Does it matter? The goal is to dominate the industry, and put the fear of piracy into the artists, for today, the RIAA is not really trying to convince pirates to stop, or governments to intercede; the goal of the RIAA is to prove to artists that they “need” the RIAA as middle-men in the distribution of artistic works (nine inch nails, Radiohead, and countless other artists have shown this to be untrue, by creating their own channels and avenues of access to their fans). Which is why, hopefully, people will begin to ignore the whining of floundering industries providing pure simple enjoyment, and entertainment, and look at the issues which impact the very academic structures of our modern societies. After the pointless squabbling and bickering of the content industry, we may begin to see the new landscape which is faced by modern academics and scholars. The subsequent section will be dedicated to these academic concerns.
A recent article featured in Atlantic Monthly by Julian Fisher, MD, a Boston-based neurologist and medical information entrepreneur as he brings out in the open some of the sad realities of the academic publishing world, (not the big ugly shiny rhetoric of the anti-intellectualism of the various arms of the political Right wing), but rather he examines the “pro-business” focus of Governments, and the centralization obsessed bigger academic institutions which now face the same questions faced by the music industry a decade ago; why are people impeding access, inflating costs, and making it increasingly difficult for people who actually have paid for access; why are taxpayers paying multiple times over for simple access to vital information, which is needed to make informed decisions in the increasingly complex world, to clarify, if a voter is going to have to select which politician will make the right choice in terms of the nuances of access to complex information, and modern tools, how can those important political decisions be made without easy access to original information. What we end up with is that on complex, modern, and high-tech wedge issues of today (abortion [when life begins], euthanasia [who gets to decide when it is over], a thousand other “bodily autonomy” cases which simply have not been tested yet in the legal system, or network neutrality [how many layers of “middle men” get to exist, who pays, and is it logical to segregate network traffic based on arbitrary source decisions]).
Illnesses that public figures have are much in the news of late — Ronald Reagan and his Alzheimer’s disease the most noteworthy — and I recently came across a brief description in a neurology journal of a medical problem that Franklin D. Roosevelt began to experience as he looked toward his fourth term — brief episodes of confusion that presumably represented epilepsy. These symptoms were thoughtfully explained in the article, written by a neurologist, Steven Lomazow, who has co-written a book on the subject.
But for any of you to read that article would cost you dearly. Why? The dirty little secret of scholarly publishing.
What are the costs in this new Internet age? As you might suspect, they have plummeted (an article I wrote several years ago here [http://t.co/SlYOVHd] is helpful), to roughly 1/100 of what they were if you produce the article as an electronic document only rather than in print. Print is no longer necessary or even desired. Why, then, the $30-$50 financial firewall that you need to pay to see the article I want to show you? In part, tradition. In part, publishers keep doing what they do and the scholars do not complain much, since their subscriptions come through their grants or university libraries. But the libraries complain, individuals like all of you reading this should complain, and everyone in the developing world complains.
There are some initiatives to change this situation. The National Institutes of Health now insist that research they fund, when published, must be made available somewhere at no cost. Some journals are made available online selectively to lesser developed nations. But there is no mad dash to change the system, even with the open-source software that supports the online publishing process and even multi-site synchronized archiving. The traditional publishers continue to make their traditional profits, and I still cannot show you the article. But you can buy the book about FDR for 1/10 of the cost of the article. Now isn’t that a great idea?
So; from all this mess, what are alternatives? Creative Commons is one manner. There is a formula to help conceive of where the value comes from a Creative Commons conception regime; “Connect With Fans (CwF) + Reason To Buy (RtB) = The Business Model ($$$$)”. This is the proposal advanced in this article, “Sharing With Creative Commons: A Business Model for Content Creators”, by Cheryl Foong, Queensland University of Technology, Australia. Sure, one says, that all sounds cute, but, in the real world, people are assumed to be criminal thieves… not quite so.
New business models are not limited to the music industry. Sooner or later, new business models will emerge in most creative industries where content can be enjoyed in digital form (e.g. books, magazines, news, documentaries, illustrations and images, or films).
The following are four case studies on the integration of CC licensing into film production and distribution businesses. In particular, these case studies illustrate the differences between the use of CC by relatively unknown film producers (the creators behind the films Cafuné (2005)and Star Wreck (2005) respectively) and its use by major film studios (Kiss Kiss Bang Bang (2005)by Warner Brothers and Two Fists One Heart (2008) by Disney).
New models do exist, just as valid new ideas will persist, allowing the large industries to shape the discourse, and focus on the “freeloaders” while legitimate uses and innovative models are deprecated and slandered simply for sharing basal conceptions and outward appearances with the freeloader model (as in, both involve digital distribution) harms the artists who have no fans yet, as well as the societies they come from, and yet also the big name super stars. Such broken discourses harm all the players; the industry was just too myopic to see the writing on the wall, the bells sounding a change in models, and they have paid for their blindness, and use of laws to “force” an old, and broken model on Western societies.
The issue of copyright infringement on the scale of databases such as Napster has taken many by surprise. With the emergence of greater digital and networking technology, it seems that large-scale databases of music, copyright infringed or not, was an inevitable consequence. The ungoverned global nature of the Internet is hampering the ability for governments, organizations and individuals, who feel that their copyright has been infringed, to stop such databases. In fact a feature of the Internet is that it changes very quickly, and has an undercurrent of circumvention of traditional rules. The impact of the inevitable revolution on the three stakeholder groups was discussed. It can be concluded that for the user, a question of ethical standards is raised. Also this group demand a simple solution for contributing to copyright royalties, otherwise they will take the easy option — free material. The conclusion for the music artists is that they have a new opportunity for expanding their audience, and gaining direct contact with them. However, retaining control over intellectual property will be a challenge. For the music industry, the potential for a moneymaking business model is available. However, their market is changing, and a challenge is going to be the need for a different approach to copyright.
Today the music industry is a shadow of the past, and who swept in to usurp them? The digital distribution models, which the industry demonized, and spread name-calling and rhetorical flourishes across “respected” news media (who happily played along; as they were next, after digital music, digitally distributed news models came next (in the vein of Fox News Corp’s “The Daily” on the ipad), but those issues would require another similar length essay, as they fought tree and bark to “force” maintenance of the “dead-tree” models). People (consumers) managed to force that business model to change too. Today digital access has surpassed print distribution, and many print publishers have collapsed under the weight of their ancient (broken) model.
“Large-scale Copyright Infringement: the Inevitable Consequence of the Digital Age”; Lynette White and Sean Elliott, Melbourne School of Engineering, Department of Computer Science and Software Engineering.
Napster’s interim CEO Hank Barry addressed congress April 3, 2001 following the court injunction of a month prior; University of Florida; Interactive Media Labs Projects
“RIAA, Resources for Students; online information access point”: RIAA Homepage.
“Tales from the Public Domain:
BOUND BY LAW?”: Duke Law Comic Publications;
“Read This Academic Journal Article, but Prepare to Pay”: Atlantic Monthly by Julian Fisher, Feb 22 2011,
“Sharing With Creative Commons: A Business Model for Content Creators”, by Cheryl Foong Queensland University of Technology, Australia.
Technical report: An Estimate of Infringing Use of the Internet, January 2011; Envisional Studies. – http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf
What do people use the internet for?