On Copying, Copyright and Fairness: A Response to David Lowery


Victoria copying machine, 1913

by Jess Row

I’m not a musician. At first glance, then, it seems a little odd that I’ve taken so much time to write a lengthy response to David Lowery’s letter to Emily White about filesharing and the effect it’s had on the music industry.

I take a position on filesharing and the free exchange of copyrighted works that surprises many people I meet. Because I’m a writer, they assume that I oppose all forms of unauthorized copying and distribution, that I resent anyone who wants to “steal” my work, and that I’m afraid that filesharing will ruin publishing—as it ruined the music industry. They get a little annoyed, and indignant, when I tell them that I think our copyright laws are fundamentally flawed, that universal access matters more to me than copyright protection, and that selling used books is just as much of a copyright violation as exchanging copies of an e-book online.

I also tell them that as far as I can see filesharing and the Internet hasn’t ruined the music industry at all. It’s radically changed the economic model of how the business works, taken a great deal of power out of the hands of the major labels, made distribution easier but publicity more complicated—yes, all those things, but it hasn’t reduced the number of performers or stifled the dizzying growth of new genres and subgenres, and it certainly hasn’t decreased any young musician’s desire to get into the business. Quite the contrary. (Just look at The Voice).

David Lowery, on the other hand, attests very strongly to the human cost (or what he believes to be the human cost) of filesharing on independent musicians, going so far as to implicate people like Emily White in the tragic deaths of two of his friends, Vic Chesnutt and Sparklehorse. His argument comes perilously close to a kind of Paradise Lost rhetoric, a nostalgic paean to a time when fair was fair and…you get the idea. He also offers what I think is a very conservative, and reductive, account of why copyright matters to musicians and other artists. For all these reasons, I think his work deserves a detailed (and, I hope, respectful) response.

Copying is not stealing

Marcus Boon’s In Praise of Copying, published in 2010 by Harvard University Press, is an important (and unfortunately little-discussed) book that offers both a broad critique of current copyright laws and practices and a specific deconstruction of a number of copyright controversies, including the battle over “fair use” of texts in academic teaching, a subject very close to my heart. (In keeping with his philosophy of free access, the entire book can be downloaded as a pdf at the link above). Boon doesn’t spend much time talking about filesharing, but his larger argument is one I mostly agree with: copying, he says, is not simply the theft or misappropriation of material (“intellectual property”) belonging to someone else. It’s a widespread, almost unavoidable act, done for all kinds of reasons—scholarship, archival preservation, reinterpretation, critique, pastiche, entrepreneurship, and so on. In Boon’s view, our cultural obsession with assertions of intellectual or artistic ownership is largely a legacy of our Platonic heritage—that is, a preoccupation with notions of original, single, perfected, static forms—merged into a post-Enlightenment veneration of individual genius. You don’t have to look very far (in time or space) to find views of originality and intellectual property very different from our own. In other words, there’s nothing “natural” or “obvious” or “commonsensical” about our current copyright regime. In fact, our copyright laws are so draconian, and out of sync with our needs and daily experience, that nearly everyone (knowingly or not) has been violating them, in one way or another, for years.

Let me put this into very practical and direct terms. I became an avid music fan in the late 1980s, a time when cassette players and blank tapes were ubiquitous. I spent just about every penny I had on music, but still, more than half of the recordings I owned were taped from someone else. Why? Because I couldn’t afford to buy all the music I wanted; because I couldn’t get to the record store as often as I liked; because everyone I knew used tapes to introduce their friends to new bands. As I got older and started buying CDs—before blank CDs existed—I once again found that I couldn’t afford to buy all the music I wanted, so I started buying, almost exclusively, used CDs. A little later, once iTunes and CD burners came into being, my friends and I started trading mix CDs and copied CDs just as we used tapes a decade earlier. I would estimate that less than half of the music I’ve owned in my life was acquired in a way that benefited the copyright owners—but before the late 1990s, when Napster came into existence, none of this behavior was considered illegal. Of course technically it was illegal (except for buying used CDs), but no one I knew ever worried about the kinds of things filesharers have worried about for the last fifteen years: life-destroying lawsuits, threats of prison time, public humiliation, years of legal purgatory.

“Home Taping Is Killing Music” anti-copyright infringement campaign by the British Phonographic Industry, 1981

It would be fatuous to say that there’s no difference between making a cassette tape for a friend and sharing thousands of albums with strangers via a P2P network. Of course there is—but it’s a difference of scale, not substance. In either case, according to a strict interpretation of copyright law, a potential purchase has been avoided, the copyright holder has been denied his or her legal revenue, and a crime (a theft) has been committed. Or, in my view, not. Because I simply can’t accept that what I was doing for all those years was criminal. If I had to come with a term for it, I would say that the culture of copying was (and is) part of an alternate economy, based on communist rather than free market principles—the kind of local communist economy that David Graeber, in Debt, describes as a omnipresent feature of all capitalist societies. You might also very loosely call it a “gift economy,” a way of creating a sense of community and connectedness in an atomized world. It was also, in the case of mixtapes, a sheer expression of Eros, a form of analog romance.

Of course, at the same time, there was a lot of cynicism and opportunistic freeloading on the side. Lowery correctly points out that hardware makers and ISPs, among other corporate interests, have fought against DRM and other restrictions on filesharing because it makes them scads of money—just as, in an earlier era, companies like Maxell and TDK, Sony and Aiwa and Panasonic, profited on a large scale from the sale of blank tapes and dual-deck boom boxes. Nothing has changed but the scale. Of course scale matters—no one would dispute the fact that music distribution on the Internet, illegal and legal, has transformed the industry on every level. But that doesn’t change my fundamental view that there’s nothing inherently wrong with making copies of media and giving them away in a spirit of friendship and generosity.

Cultural preservation: the third constituency

Lowery’s response to Emily White treats the question of filesharing and payment for music as a conflict between two constituencies: fans or consumers of music, who ideally would like to have access to all the music they want for free, and musicians, who need to get paid for the music they produce to survive. But there’s a third constituency that needs to be acknowledged in this debate: the public as a whole, which has an interest in accessing music (as well as literature, art, dance, performance—anything produced or published or created in the realm of art) and preserving it for future generations. Part of the reason copyright law exists is to safeguard all forms of cultural production so that the public can enjoy them and scholars can study them—now, or two hundred years from now.

I would never advocate a “Free Culture” (Lowery’s term) in which, to quote Boon, “anything can belong to anyone, and nothing can belong to anyone.” But the truth is that in the late capitalist culture we inhabit very little is available for free or made universally accessible to the public. Privatization is a creeping threat that affects so many areas of our public or civic life—politics, education, infrastructure, prisons, our natural environment. The vast extensions of intellectual property law we see today—into software code, genetics, biological properties, primary research—are part of an effort to “monetize” formerly common resources. This includes efforts by the movie and music industries to extend copyright protections into absurdly long intervals—effectively preventing tens of thousands of books, movies, and other media from ever entering the public domain. (See the Sonny Bono Copyright Act).

There’s also the simple fact that systems of authorized distribution don’t reach all the places we would like them to. (This is the case not just in music and book publishing but in much more vital fields, like pharmaceuticals—which is why a similar debate over “intellectual property” rages between Western drug companies and the manufacturers of generic copies of their drugs in India and elsewhere). A moving example of this paradox can be found in Daniel Alarcón’s essay “Life Among the Pirates,” in which he writes about meeting Peruvian prison inmates who have all read his book—in pirated form. In Peru, as in many developing countries, there are no retail bookstores outside major cities, and the prices of books (most of which are imported) are out of reach of the majority of consumers. Since there are very few public libraries, the only way for most Peruvians to get books is by buying pirated copies.

Given this context, is it any wonder that books are pirated? You can lament the informality of it, you can call it stealing, you can bemoan the losses incurred by the publishing industry – but if you love to read, it’s difficult to deny the hopeful logic: if someone is selling books, someone must be buying them. And if someone’s buying them, someone must be reading them. And reading, especially in a country as poor as Peru – isn’t that a good thing?

But piracy, as he observes in the rest of the essay, presents its own host of problems. The solution to this problem isn’t to encourage profiteering through counterfit goods; it’s to advocate for public access to media of all kinds, through libraries, open educational institutions, and increased global access to the Internet.

How do we measure the effects of filesharing on the music industry?

This is a critically important question—not only for historical reasons, but because the only way we can imagine what effect filesharing will have in other arenas (like book publishing) is by understanding what actually happened to the music industry after the introduction of mp3s and mp3 players and the development of Napster in the late 1990s. Lowery introduces four statistics to make his case about the decline of the music industry during this period:

Recorded music revenue is down 64% since 1999.

Per capita spending on music is 47% lower than it was in 1973!!

The number of professional musicians has fallen 25% since 2000.

Of the 75,000 albums released in 2010 only 2,000 sold more than 5,000 copies. Only 1,000 sold more than 10,000 copies. Without going into details, 10,000 albums is about the point where independent artists begin to go into the black on professional album production, marketing and promotion.

Lowery doesn’t provide citations for these figures, making it all but impossible to source his claims, and, not surprisingly, the Internet is full of articles quoting statistics and studies about the effect of filesharing on the music industry—most of them difficult to trace. Kristin Thomson, of the Future of Music Coalition, pointed me to a position paper from FOMC explaining why it’s impossible to measure whether actual music revenue to artists has increased or declined over the last two decades. Another authoritative study (the one academic study I found widely available online) is “The Recession in the Music Industry: A Cause Analysis,” by the Austrian scholar Peter Tschmuck, who teaches in the Department of Culture Institutions Studies, University of Music and Performing Arts, Vienna. Examining data on music sales from the International Federation of the Phonographic Industry stretching back to the 1950s, Tschmuck concludes that the slump in music sales over the last fifteen years is more likely due to larger cyclical trends in music buying—particularly the rise in the sales of singles on the Internet, as opposed to whole albums on physical CDs, since (as has been demonstrated before) the sale of singles is not nearly as profitable for record companies as the sale of long-playing formats. He also points out, helpfully, that this period is not the first time there has been a steep worldwide decline in overall music sales; there was another such slump (of about 25%) in worldwide sales in 1979-80. At the time this was attributed to the global recession following the oil crisis of the late 1970s or the new availability of cassette players (which enabled the spread of “pirated” music for the first time) but scholars later concluded that the reason was “saturation in the music buying market.”

Who is really to blame for the changes in the music industry?

Of course, the core of Lowery’s argument is not a statistical one, but an ethical and philosophical one: he believes that irresponsible and selfish (or confused and ignorant) music consumers, abetted by the “Free Culture Movement,” have done real, concrete harm to himself and other musicians by exchanging music illegally instead of buying it. But the statistics are the only way he can demonstrate an actual connection between filesharing and the human cost of the music industry’s transformation since the 1990s. As far as I can tell, that connection is much more tenuous than he thinks. Perhaps the most surprising part of his argument, to me, is that he seems to want to shift all the blame for the changes in the music industry to consumers and technology companies, particularly Google and Apple, rather than blaming the industry itself, when it’s been widely accepted (even by record companies themselves) that by pursuing a punitive anti-piracy policy, using DRM software, and resisting making their content available online in legitimate ways, they made the situation much worse than it could have been.

Lowery’s disinclination to blame the industry itself extends to a kind of blanket defense of record companies and their practices. There have been some highly publicized abuses by record labels,” he says, “but most record contracts specify royalties and advances to artists.” Of course it’s true that record labels pay their artists something, but this ignores all the systematic, and well-documented, injustices and inequities within the music industry—which are most egregegious, and most systematic, in the treatment of artists of color.

It’s true, of course, that filesharing is not justified simply by saying that the music industry, pre-fileshraring, was corrupt and unjust—that’s a cop-out, not a sustainable argument. It’s also hard to defend an industry’s right to exclusive control over decades of recorded music when the creators of the music often don’t benefit from it, or don’t benefit enough. In any case, what we know now is that the industry has decisively changed—major labels control less and less of the market, many artists manage their own music production and releasing, revenue streams have shifted to live music, touring, merchandise, TV commercials, and so on. Most musicians, especially younger musicians, have accepted that they’re not going to be able to support themselves exclusively by selling recorded music—and more and more music is available legitimately online for free, as downloads from artist-driven websites like BandCamp, from YouTube and Vimeo, or from ad-based/subscription-based streaming services like Pandora and Spotify. The antagonistic narrative Lowery presents—victimized musicians, brainwashed fans, all-powerful media conglomerates—simply doesn’t describe the landscape of the music industry today.

What is fair compensation for musicians, writers, and other artists?

One point worth making about this issue is so obvious that it’s easy to ignore: much of the problem with being an independent artist in the United States is that (certain states aside) we have no meaningful safety net—no health insurance, no subsidies for childcare, very little state support for artists in the form of grants and fellowships. Some freelance musicians and artists in other fields (actors, screenwriters) have access to unions that give them some protection and benefits that act as a kind of substitute for a social safety net, but popular musicians, jazz musicians, literary writers, and visual artists (just to name some categories) don’t have any such protection. Lowery’s arguments notwithstanding, there has never been a good time to be an artist in the US, for the same reason that there’s never been a good time to be any person with an unreliable part-time income. Only very recently have groups like the Freelancer’s Union begun to seek collective protection for these populations of workers.

Does this mean that the individual consumer has no obligation to worry about musicians and how they support themselves? Of course not. But we live in a culture that tends to fixate moral responsibility on individuals (“change your lightbulbs to stop global warming”) as a way of ignoring the lack of moral responsibility in corporations, governments, and our society as a whole. Actual fairness in artist compensation has relatively little to do with the choices I make as a consumer and much more to do with the legal and technical arrangements artists make with the companies that distribute their work. The Future of Music Coalition has released a series of “Principles for Artist Compensation in New Business Models” that goes into great detail about how musicians (and, in theory, other artists) can ensure fair compensation in digital distribution.

I would also insist that fairness in paying musicians and other artists also has to include some acceptance of the importance of public access and cultural preservation. The best way to do this, obviously, is through an expanded public library system—and increased aid for the development of libraries in under-resourced communities. (Libraries, of course, can and should be a way of distributing music and film as well as books and other printed media). But it also requires a very different understanding of intellectual property and copyright: one that balances the interests of consumers and the public with the needs of “content providers” and the companies that profit from them.

What should consumers do, then? Particularly consumers like Emily White—the most dedicated fans, the ones devoted to cataloguing and curating their collections, programming and promoting and spreading the word? Here’s a thought: make a monthly budget for music, based on what you can actually afford to spend, and make sure you spend it. That way whether you’ve bought concert tickets or mp3 downloads, drinks at a music venue or merchandise, you’ll have done your part in supporting the industry at a difficult time.

And another thought: don’t take these concepts—copyright, ownership, theft, freedom, obligation, responsibility—for granted.

Piece crossposted with Jess Row’s website