Uses and abuses of copyright law

Today I’ve decided instead of posting a review of music, I would post an incredibly lengthy paper I wrote for English class about how the RIAA and MPAA are basically destroying art. Hope you guys enjoy it. I strongly recommend everyone read at least the online articles I’ve cited (at the end of the article).

Uses and Abuses of Copyright

Copyright law is a heated topic these days, and for good reason. Copyright laws affect every area of our lives, from the way we as consumers listen to our favorite songs and watch our favorite movies, to the art musicians create and how it is distributed. Copyright laws have a long and complex history, beginning in the sixteen-hundreds (Demers, 2006:15). It came about as an attempt by companies to gain a print monopoly, but ended up benefiting both the author of the work (whether that work is musical, written, or acted) by giving them new rights, such as protection from piracy and the public domain (Demers 2006:15). Now big corporations, especially those in the music business, are again trying to take advantage of copyright for their own benefit using the classical guise of “for the author” while simultaneously working against the author at every turn.

The history of copyright law goes back to the 1600’s when the printing press was a recent innovation. The first copyrights were called “Letters Patents” and weren’t given to the author of the work, but its publisher. These publishers formed a union that they called the Stationers’ Company. This company was the only government-sanctioned printer in Britain until the House of Commons voted against extending its privileges in 1694 (Demers 2006:14).

The House eliminated the Stationers’ Company’s monopoly for a very specific reason: they wanted to improve competition in the print world. This worked well, but there were some drawbacks. Most problematic, piracy ran rampant. The Stationer’s Company took this as an opportunity to champion the rights of the content creators in order to get their monopoly back. Fortunately, the plan backfired when in 1710, Parliament created the Statute of Anne, which for the first time gave copyright control to the authors. It was also the first law to give a limited life span to the copyright, fourteen years with a possible fourteen-year extension (Demers 2006:15). It also created the public domain by saying that any publisher could use a work after it was out of copyright. As it is easy to see, nearly every lobby to the government by the Stationers’ Company was done, as Joanna Demers says in Steal This Music, “…in the name of authors,” but for the company’s benefit, and the tactics haven’t changed at all in the intervening years, only the names of the companies.

As time went on, the laws continued to evolve, and the United States soon became one of the most prolific countries in creating movies, music and written works. In 1976, the Copyright Reform Act was passed, which better explained fair use, a provision that allows people to technically break copyright if the author isn’t harmed and the user doesn’t benefit monetarily, and extended the length of copyrights.

Fair use can be confusing, and it is not well-defined in U.S. law. Sarah Wiant points out that the vagueness of the definition of fair use is very problematic, because it is one of the few areas in the law that protects the rights of the consumer and the user instead of the copyright holder. These uncertainties cause problems not only for the people, but also for big companies. AT&T has resigned itself to paying for every use of a copyrighted work, whether that use is fair or not, for fear of costly and time-consuming litigation (Wiant 1997: 318). These fears also show up in the behaviors of companies who are less able to absorb the costs of a lawsuit and damages, like hospitals, libraries, universities and the like.

Recently, the laws seem to have gone from giving the author protection and the users rights, to allowing the author (or the company that owns the work) ever-expanding control. Big corporations like Disney and the music cartels have pushed for absurd copyright lengths in the Sonny Bono Copyright Extension Act and other laws severely restrictive of user’s rights such as the Digital Millennium Copyright Act. Although intellectual property laws are put in place to protect the rights of content creators, they should never unfairly restrict the rights of the public to use that content.

In today’s world, certain provisions of copyright law can seem old-fashioned, poorly-though-out, or even malicious. To people used to copying all of their music from their CD collection to their computer and iPod, the Digital Millennium Copyright Act’s ban on circumventing any DRM, even the already-broken DRM on every commercial DVD seems illogical. By not allowing anyone to copy their DVDs to their computer legally, the law makes anyone who would like to take their movies on the go without the physical copy into a criminal, which lessens the impact that the “criminal” label has, possibly leading to more crime (Van Horn 2002).

The confusion, convolution, abuse and exploitation of copyright laws by media companies has begun to cause serious problems for our society. The illegal downloading of music is so common that at least two-thirds of college students do it without any ethical reservation, and many do it even with ethical reservations (Wong 2005). It wasn’t long before the big music companies used the RIAA (the Recording Industry Association of America) to sue its own customers for thousands of dollars in damages when they believed they were making copyrighted music available on the internet. They argue not that downloading music free from the internet deprives them of revenue, but that the artists suffer, just as the Stationers’ Company argued several hundred years ago. This time, however, the government is bowing to their will, tightening control and limiting freedom with laws like the Digital Millennium Copyright Act.

These companies are also pushing digital and electronic means to restrict users from violating copyrights, such as traffic shaping, which, according to Gregory Jackson (2007) in “The Digital Carrot, the Digital Stick,” relies on “…the attributes — but not the content — of traffic flowing across the network.” In other words, if the network believes that a certain stream of bits in it are an illegal copyrighted work, it will slow their transfer or block them alltogether, never mind that they could easily be something the sender created, such as a song they wrote or a lengthy e-mail. There is also the method of signature matching, which actually looks at the content, so it knows whether it is a song or a text document, but again has no ability to tell whether it is a legal copy or not (Jackson 2007) These digital obstructions are not effective. Most obviously, the pirates have started to use encryption (a method preventing anyone from accessing digital content without a key) which prevents these methods from working entirely. More importantly, they try to curb a person’s actions without going into the underlying reasons of why people are stealing so many copyrighted works.

And why are they stealing? There are many reasons, but the biggest are detailed in “Digital Carrot, Digital Stick.” Jackson explains that users break copyright law for three reasons: it’s hard for them to get what they want, they aren’t always able to use what they can get, and most simply, they don’t think the price is fair. The media companies in their infinite wisdom have not made it easy for people to legally buy music online until very recently, and even now it is hampered. They have also kept the prices high, even though they have none distribution or packaging costs associated with “real” media, such as CDs or DVDs.

Why can’t the users always get what they want? Each label has to sign a deal with the company that wants to sell online music. Take Apple, for example, as it is the largest music retailer in the country. If Apple wants to sell Nirvana’s music, it has to go to Geffen (Nirvana’s record label) and negotiate a deal. That’s hard enough, but that deal is only good in the United States, so if Apple wants to make iTunes available in Britain, or anywhere else, they have to negotiate a separate deal. If a user lives in a country that the iTunes store isn’t available in, or they would like something more obscure that isn’t available in the iTunes store, they can’t get it there (or it won’t be compatible) and will likely just download it illegally.

Why can’t the consumer always use what they can get? Because up until very recently, every song purchased legally on the internet had a special little code in it called DRM, or Digital Rights Management. DRM allows the record labels to dictate when and how the file can be used, but it can cause issues that aren’t so obvious. The DRM used in Apple’s iTunes store is not available for any other company to use, so if iTunes users want to use a different type of MP3 player than the iPod, they will often have to give up their old purchases or burn them to a CD, which causes a loss in quality. The opposite went for other online stores. None of their songs worked with the iPod, and according to the DMCA, circumventing that DRM to get it on an iPod is a criminal offense.

Finally, prices are high. The standard price for a single song on most online music sites is 99 cents. While that isn’t exorbitant, it is still a psychologically significant amount of money. Buying an entire album also still costs about as much as an actual, physical album, while having none of the benefits of a physical copy or album art. Jackson argues that if content providers took these factors into account, they would reap the benefits in higher sales and less theft. He believes that every bit of content available on a CD, DVD, or any other type of media should be made available for convenient purchase online, completely free of DRM and for reasonable prices. Reasonable, he believes would be about 25 cents for shorter songs and ten cents a minute for lengthier songs. Of course, he admits, illegal sharing would still continue, but it would be greatly curbed.

These changes would do a great deal to curb illegal downloading, but the fact is that copyright law is still in need of reform in many areas. Copyright law is still stuck in the ages of print, paper, and vinyl. The digital revolution has completely changed the landscape, and big changes are necessary to keep copyright relevant. While I would not argue that copyright should be abolished, like Diane Zimmerman (2007) nearly does in Living Without Copyright in a Digital World, I would argue that its scope needs to be reevaluated, and it certainly should not be given any more power, like big media companies are fighting for.

Media company executives, especially those in the music industry, are quick to argue that the more restrictive laws, high prices, DRM restrictions, and lawsuits are all for the benefit of the author of the work, the band or performer. But as has been mentioned before, this is nothing more than their tried-and-true tactic to glean more money from the masses and more support from Congress. The fact is, music companies do not care about the artist at all. They care about getting as much money as possible from the artists, even if it ruins them financially and prevents them from ever releasing more music. Industry veteran, Steve Albini, describes this in his paper “The Problem with Music.” In it, he details the workings of the music industry. There are way too many evil little details to go into, starting as soon as the band meets with the label’s A&R rep. Fledgling artists beware- think twice before you sign a Letter of Intent, which is a “mini” contract that permanently locks you in to finding a full contract with the label. And they don’t care if you even reach a contract (Albini).

Here is an example Albini gives of an unnamed band who were given a 250 thousand dollar advance upon signing and sold a quarter million CDs. This band also made fifty thousand dollars on tour, twenty thousand in merchandising and twenty thousand from “publishing.” You’d think the band would be in the money, but in fact the fees go on for several pages. Highlights include the $37,500 manager’s cut, the $52,500 studio fee, the $150,000 recording budget, $10,000 legal fee, $50,000 producer’s advance, and the list goes on. But the most insidious fees are the little nickel and dimings by the label. The eight thousand dollars the band is charged for recording tape, the thousand for catering, the two thousand for transportation of god knows what, the three thousand for promotion, the editing, the album artwork, et cetera. In essence, the artists is charged for every single thing the label can think of (Albini).

The band is expected to make that money up in royalties. You know, that little word that the media industry uses to restrict the rights of the public and charge exorbitant amounts for media. But unfortunately for the band, royalties aren’t pure money. This CD took in a gross three million dollars total, selling 250 thousand copies at twelve dollars each. The band is only given payment for ninety percent of the CDs, because the rest are “promotional” CDs, supposedly sent off to radio stations that may or may not play the band’s songs and are never recollected. The royalty is thirteen percent on ninety percent of the CDs. After factoring in all of their earnings and all of their fees, they end up owing 14 thousand dollars to the label. In contrast, the record label ended up making 710 thousand dollars. It takes no genius to see that the labels don’t care a thing about their artists. It’s the money they want (Albini).

In conclusion, copyright law is a topic of much debate, and there are many reasons why. Copyright laws affect every area of our lives, from our consumption of music and movies, to the art musicians create. Our laws have a complicated history, and in many ways is still stuck back in the days when making a copy was difficult and costly. To stop people from stealing copyrighted works, lawsuits, harsh restrictions and digital obfuscation are not the answer, but fairness and a mutual trust are. Unfortunately, media companies are used to taking advantage of the artist and the user, and are trying hard to keep their stranglehold in that area. In all, copyright is meant to protect and benefit both the consumer and the creator. Without both, neither would have any purpose for copyright.

Works Cited

Albini, S. (Undated) The problem with music. Retrieved 13 Mar. 2008, from
<http://www.negativland.com/albini.html>.

Demers, J. (2006). Steal this music: how intellectual property law affects musical creativity. Athens, Georgia: University of Georgia Press.

Jackson, G. (2007) The digital carrot, the digital stick. The Chronicle of Higher Education 54, b20. Retrieved 2 Mar. 2008, from <http://chronicle.com/weekly/ v54/i14/14b02001.htm>.

Van Horn, R. (2002, January 1). The Digital Millennium Copyright Act and Other Egregious Laws. Phi Delta Kappan, 84(3ov), 248. (ERIC Document Reproduction Service No. EJ657216) Retrieved March 5, 2008, from ERIC database.

Wiant, S.K. (1997). Users’ rights to photocopy: the impact of Texaco and Michigan Document Services. In L.N. Gasaway (Ed.), Growing pains: adapting copyright for libraries, education and society (pp. 315-349). Littleton, CO: Rothman & Co.

Wong, B. (2005,June 30). Illegal downloads don’t pose ethical problem for college students. Seattlepi.com, Retrieved April 4, 2008, from http://seattlepi.nwsource.com/business/230702_downloads30.html

Zimmerman, D. (2007). Living without copyright in a digital world. Albany Law Review, 70(4), 1375-1397. Retrieved March 9, 2008, from Academic Search Complete database.

other reading: The RIAA has gone too far, Cultural Historian?

~ by infinitously on August 20, 2008.