| Sunday,
July 30, 2000
This is very long and very wordy, but I don't
have time to edit, and it does raise some questions. Most of the questions
I would have thought to have obvious answers, but clearly not.
From: Stephen M. St. Onge saintonge@hotmail.com
Subject: music and copyright
Dear Jerry:
Lots of pieces to this copyright thing.
1) Let's look at Love's math: the four band members
made, in her reckoning, $87,500 before taxes, which she terms "might
as well be working at 7-11." To make that at 7-11, working fulltime
for a year, you'd need to be paid 42.06/hour. Whom we kidding here? And
somehow she doesn't mention song writing royalties, which pay from the
first record sold and are 100% non-recoupable.
In any case, if the record company make as much as
she claims, and the bands make that little, then let some bands get
together and form their own co-op record company. They'll get rich. The
fact that she and others aren't willing to put their money where their
mouth is suggests that the record company aren't making as much as she
wants us to believe.
2) Courtney Love's point about the "works for
hire" law is undoubtedly valid. It's pure theft. But the provision is
arguably unconstitutional, as Congress never voted for it. For that
matter, that law arguably took private property without just compensation,
another unconstitutionality. Why isn't she suing to block enforcement? Or
if she is, why didn't she mention it?
3) Her remark about Sen. Hatch having a
"progressive" view of copyright speaks volumes, unintentionally.
The "progressive" view of politics is that if you don't like the
results, you change the rules retroactively to make things come out the
way you think they should have. And that's EXACTLY what the guy the record
didn't *nudge, nudge, wink, wink* bribe, just hired later as a lobbyist,
did to her and others with that "work for hire" provision.
She says that isn't how she was taught govt. worked
in civics class. Well, didn't they ever tell her about Alcoa being
convicted on anti-trust charges, because they were too good at making
aluminum? Their costs were so low, and they went after emerging markets so
aggressively, that no one could get a foot in the door. That was illegal,
supposedly. Bad for consumers to buy cheap aluminum from one company,
instead of expensive aluminum from two or three companies. Or the Civil
Rights Act, where Sen. Humphrey swore that there was absolutely nothing in
the bill that could possibly be used to enforce the quotas that the Civil
Rights Commission routinely enforces? Ya got what you wished for, Love and
all you other lefties, now choke on it.
Similarly, she says "I feel this obscene gold
rush greedgreedgreed vibe that bothers me a lot when I talk to dot-com
people about all this." If Ambrose Beirce were defining 'greed' today
for the DEVIL'S DICTIONARY, it would probably be something like "the
emotion of wanting too much money for yourself, and not enough for ME.'
Love just wants all the dot com people to create a whole new music
distribution system out of the goodness of their hearts, and generously
give the profits to her. Don't hold your breath, Courtney darlin'.
4) I agree with the person who said the industry
mostly has itself to blame for napster. I recently bought three CDs by
Mason Williams, one of my all time favorite musicians. I have several on
worn old vinyl lps that I'd love to buy on CD, but they're not in print.
If napster has them at really good quality, I might download them. Just
whom will I be depriving of money there -- a used record shop? Speaking of
which, publishers at one time tried to prevent the resale of used books.
Not, note, the pirate printing of them, just the individual resales of
used copies. If the record industry gives me a high quality site where I
can download stuff for say $1.00/song, I'd gladly be paying them more than
I can afford to spend.
In his interview, Jimmy Iovine points out
"There are ways to steal cable, but most people choose not to. We
have to give people music in a format that offers the same convenience as
the one where they get it free," and
"Q: The business model of the industry has long
been built on the album. But online users prefer downloading singles. A: I
think albums will still exist for a long time. But who knows? Maybe we'll
end up changing the way that albums are configured. Maybe we'll end like
television with an advertising-based model. We'll probably go through 50
different experiments before we get it right, but so what? Why is
everybody so locked into protecting one specific format? What is this, a
religion? I swear the Catholic Church changes quicker than the record
business."
Love made a good point when she mentioned that you
buy an album full of songs you don't want to get the one you do. This all
made sense when distributing a vinyl record or CD and holding it in
inventory at the corner record shop was a major expense. It doesn't make
sense now.
I just looked at the Metallica interview on slashdot
you posted, and they say, "the future of getting music from Metallica
to the people who are interested in Metallica's music is through the
Internet. But the question is, on whose conditions, and obviously we want
it to be on our conditions." But it isn't the future, it's the
present. Wake up and set the conditions NOW guys, or someone will set them
for you.
5) In your mail comments, you term one viewpoint
"The Korean shopkeepers can't stop the looters from taking
everything, so therefore they ought not try, and perhaps ought to be
prevented from trying to protect their property, which the people around
them want so badly." But the Korean shopkeepers WILL sell me their
stuff. The record industry won't sell me 'out of print' items. Their
attitude is more like "We can't be bothered, so you're stuck."
Congress is authorized to grant copyrights to ENCOURAGE the creation of
artistic works, not to prevent them from being distributed.
I subscribe to your site, though I could get it for
free. I buy computer games, because I want to encourage the people who
wrote them to create more. But if it's no longer for sale, I feel no guilt
whatsoever in "stealing' a copy.
6) I can't help but remember the movie industry and
VCRs. Years before Betamax, the technologies were there for home viewing
of movies (the guy who invented the LP also invented a viewer where you
could play a 16mm movie and 'project' it into your TV; it was never sold
by the company that owned the rights. Another guy created consumer VCRs
that were built into TVs and sold through Sears; it died of bad marketing,
a large part of which was the movie companies attempt to make everyone
renting tapes pay them royalties for every viewing. Rent a film for this
machine and you couldn't rewind it and watch again without going back to
the store and paying another rental fee!). After blowing their chances
repeatedly, the movie companies sued to prevent the sales of Betamax and
tapes, then tried to get Congress to put a tax on tapes to raise revenue
that would go into the pockets of the studios. Didn't work, which is why
you can record Buffy and Angel every week, to view at your convenience,
and view again and again at your leisure. Bet you fast forward through the
commercials that paid for the production of those shows. Sounds like theft
on your part to me. Don't you feel guilty for ripping off the intellectual
propertyholders this way? Of course, we all know the result of VCRs: a
vast new market for movies, and the re-vitalization of the industry.
What all this smells like to me is the lazy
monopolist syndrome. They try to freeze the system as it is, so they won't
have to work.
I can understand letting works go out of print when
the costs of production and distribution were high, but it's already
possible to sell hardcover books at the rate of one copy per printrun, and
CDs are even cheaper. You ask whether "once rapid printing machinery
is widespread in schools, it will be fair use to make up printed copies of
books and distribute them, because the students need them so much."
No, not for free, but there ought to be some way the school can print
copies of stuff and pay a standardized royalty to the publisher. We ought
to working on forcing companies that want to keep a copyright in force
make the works available, while making those whom want them pay for them.
But that requires original thought and sweat, which is exactly what no one
wants engage in.
Suggestions:
a) When a publisher or record company sells the
rights to a book or an album, revenue MUST be applied to any recoupable
costs the creator owes, and the royalty requirements continue with the new
owner. That corrects the injustice of the 'work for hire' ripoff.
c) If it's not available for two years, at least as
a custom mail order, copyright reverts to the creator. After two more
years, if the creator doesn't make it available, copyright is voided.
What's your take on this as an author?
Best, St. Onge
First, you're saying that if Love doesn't like
the deals the record companies offer, she should get a better agent, join
a union, and probably go into the publishing business. That latter
is not as easy as it seems: publishing is a pretty full time job, and
leaves little time for creative effort; as the founders of United Artists
found out long ago. It can be done and often is, but the talents of
artistic creation and those of business management are not the same and
are rarely found in the same person.
Surely, though, it is not her fault that the
People of the United States, in the person of one Congressional staffer
who managed to stuff something into a bill, has robbed her?
But it's all right, because she could sue, but
she hasn't told you what she is doing, so she's at fault? I have no
great love for Love, whose politics I gather are pretty normal for her
profession and venue, but I don't start with the contemptuous hostility
you display: nor do I think citizens ought to have to pay tribute to
lawyers in order to get redress from the Imperial City. Perhaps we must do
that, but surely it's not something to be proud of?
Your point 3 is pure bile. I understand the
impetus to stick it to the left and hoist them with their own petards, but
that cannot be the proper attitude for rebuilding a republic. That is the
proper attitude for participants in a civil war. It also smacks of cutting
off one's nose to spite one's face. Those are BAD LAWS, and while I can
take a bit of ironic pleasure from seeing them applied to those who
advocated them, I would take a great deal more in seeing them fixed.
At point 4 we get at last to a substantive
matter: if the industry doesn't do things the way you want, do you have
the right to take matters into your own hands, and distribute others's
property in ways you think proper? I put that as strongly as I can
because there is compulsion if not merit in the argument. I don't believe
in absolute property rights: enjoyment of property means collective
protection of rights in that property, and the collective protection may
well justify restrictions on the use of that property. The California
Coastal laws are a case in point: if you want protection for your property
rights on the beach, you must concede some rights to the general public to
have access to and use at least some of that beach. The public after all
pays for the police and courts and your protection; surely you have some
obligations? How much obligation and which ones are certainly
arguable matters.
But the beach is a natural phenomenon, a natural
resource. Courtney Love's performances are not except in the theological
sense that God gave her talents; but this is not a theocracy. In a
republic she has the right to use her talents pretty well as she chooses
(including hiding them under a bushel I presume, to the detriment of her
fans), or so I would suppose.
You say that because she, or the companies that
have control of her works, have not yet made them available in a form and
at a price that you like, you have the right to take them, either through
confiscatory laws, or through direct action; and that only when they get
with it, become modern, use the distribution means that you prefer, only
then do you have any moral or ethical obligations to respect their
property rights. This seems to be what you are saying, and I say,
beware, for you assert a lot, and under your philosophy of point 2, when
this is visited on you, you may not complain, and we may all
cheer.
In the case of abandoned works not repudiated by
their creator, we may agree: protecting rights in those is a poor
allocation of public resources, and there seems to be little ethical
problem in simply making copies for one's own use. I do point out, though,
that the new technology makes it possible for creators to get their older
and less popular works back in distribution or at least in availability,
and while we may not care to use many resources protecting works available
only in second hand stores, we don't want simply to appropriate their
works either. As an example, Harlan Ellison routinely buys up all the
remaindered copies of his works. He takes some of those with him when he
speaks, and sells autographed copies at prices higher than the original
cover price. I am told he does well out of this. Surely he has that right?
And surely, simply because some of his early collections are out of print
and available only from him, you have no right to not only make your own
copies, but swap copies you have made for other copies others have made?
Surely you do not assert your right to do that? Even if you feel deprived
and "would buy a copy if I could"?
I am not sure why you accuse me of theft
regarding taped episodes of television broadcasts; I presume simply to be
able to call me names, because the argument makes no sense and you don't
accept it yourself.
As to the rest of your argument, it amounts to
the notion that we are all wasting our time; devising proper laws is
difficult and requires thought and sweat and no one will do that.
May I disagree? I am not fond of most Congresscritters, but I have spent
much time among them, and sloth is not their vice. They do work hard,
perhaps at the wrong things, but most in fact mean well by their own
lights. The system allows them to be deceived by trusted staffers, and the
corrupt attitudes that radiate from this White House have pervaded much of
the Imperial City, but I would not have thought it all hopeless.
And finally at the end you assert what ought to
be, but it appears to be pure assertion: it ought to be because you want
it to be. If you mean "there ought to be laws" then I
point out that obedience to the laws that exist is one of the requirements
for having a say in the making of laws: that is what self-government is.
You assert that what ought to be is a right to schools to take what they
like, and pay what they like, with no consultation to the writers,
particularly so if the work is out of print.
Perhaps. Works out of print and not in
circulation do present a vexation, and perhaps a wrong to be remedied.
Protecting the creator's right to those works gives the creator little to
nothing, and deprives the public of their use; this seems an odd
allocation of the public resources needed to protect the rights. Clearly a
matter for legal clarification.
Some cases, though, are clear: authors make more
money if they, their agents, and their publishers, agree to let a work
stay unavailable for a time then reissue it. This is not so much a
phenomenon of the public as it is of the distribution system, but in any
event, it does work, and your scheme would destroy that stratagem.
Is this your intent? Is it your right?
On the other end of clear cases are abandoned
works which no one ever intends to bring back in print, or in the case of
software, back in distribution with support. There certainly ought to be
mechanisms whereby such fall into public domain, there being no harm to
anyone and much potential good.
In between are the details, and those do require
a great deal of work and sweat and thought, and I have news for you:
author associations such as the Authors Guild, and publisher associations,
and agents, are all working quite hard on these issues in the hopes of
coming to terms with new technologies: and I do not think that simply
because we have not yet come up with a scheme that you like, you have to
right not only to make copies and give them to friends, but also to barter
copies of our work to strangers in return for copies of other works you
have not paid for. Yet that seems to be what you assert. Why? I doubt you
actually agree with that proposition as a general principle of life.
Yes: the ease of reproduction of artistic works:
performances, paintings, books, movies, is changing everything, and the
laws must adapt; but I say to you, getting people used to the notion that
everything artistic is free, and you have the right to protest high prices
not merely by not paying the price and not buying the product, but by
stealing it and feeling justified for having done so, is not a healthy
thing, and the attitudes taught undermine the fundamental values required
to sustain a republic.
And I can't improve on this:
Dear sir
Isn't the want of goods and materials the reason we
learn to work? I know students are very poor and cannot afford the dozens
of recordings they want. Shouldn't that be an incentive to earn enough
"evil" cash to purchase the items they want? Most people I know
want to have a warm and dry place to sleep, some decent food , clothing
and some fun stuff. Their novel solution? Work for it!
Best regards.
Elton Wallace
The subject of wrongs has been beaten, possibly
to death, certainly to tedium. Perhaps it is time to turn to REMEDIES.
Dear Dr. Pournelle,
I am interested in your opinion as an author on
Stephen King's on-line publishing experiment. He is publishing a story in
several parts on line, with methods for paying $1.00 for each installment
on the honor system. If more than 75% pay, he finishes the story. If not,
he doesn't. (http://www.stephenking.com)
This is, of course, not the only online publishing
for money (I picked up Victor Koman's "Kings of the High
Frontier" and other items from Pulpless.com), but since it is Stephen
King it is a very high-profile attempt. I see no reason that music
publishing companies couldn't do similar things.
I think the main thing blocking this entire field is
the difficulty of paying small amounts ($1.00 or less) on line. Credit
cards can be used, and there are other techniques, but I think that many
people are uncomfortable with them. I myself have no problems using a
credit card as long as I'm dealing with a reasonably large or well-known
outfit. I particularly like the Amazon "one-click" system,
although it can be dangerously addictive.
Once this problem is fixed, I think this type of
purchase of books, music, movies, etc. will become more widespread,
satisfying the Napster types who want cheap product, giving the authors
and creators their due, and (perhaps most important) creating a route
around the corporate publisher bottleneck if it becomes necessary.
Tom Brosz
Like every other author I follow King's
experiments with keen interest. We all hope it works.
This site is an example: I work at it, but not
full time, yet this experiment has shown I could probably eke out a
retirement existence on the subscription income if I lived frugally and
worked at getting more subscribers.
But I started it at a time when I had more hopes
that DEC would develop Millicent. If there were a simple system for
transferring a dime from your bank account to mine, I could charge a dime
access to this site, and another for access to special areas. Dvorak and I
would start the DISCONTINUITY site we did briefly, and we suspect there
would be a decent revenue at a dime a shot from people who want to see and
listen to us yell at each other.
It was, after all, thirty years ago that I said
in A Step Farther Out that publishing would one day consist of placing
works in an "information utility", you would then read the work,
and a royalty would go from your bank account to mine and
"where's the need for that blood sucking publisher." I
suspect that Courtney Love would do well to band with others to launch a
good web distribution system. Perhaps Metallica would help.
But I also think that the legal system out to
provide a phased out protection, not merely abandon writers and artists.
Perhaps I am wrong, and there is no intellectual
property, and thus nothing to protect; but I am not yet persuaded so. In
any event, yes, I would very much like to see widespread a system for
economical transfer of small sums over the Internet. But at the moment it
costs me a dollars to collect any amount of money at all over the net...
I'm afraid that Mr St Onge's career would not last
very long based on his lack of arithmetical abilities. Either that, or he
thinks his work worth that of four ordinary men.
Like you, I have not to my knowledge heard Courtney
Love, but was moved by her impassioned plea. There are very few who make
even a subsistence living in the music industry.
Yesterday, I was visited by a friend who has written
several world-famous songs and many others besides. He sells suits for a
living; the income from songwriting is likely less than he spends on
dogfood.
He is represented by an organisation called the
Australian Performing Rights Association. Logging into his APRA account
with his password reveals 17 pages of song titles to which he has royalty
entitlement. His publisher's website reveals no trace of his existence. A
Google search reveals one mention of a song of his performed at a Japanese
concert several years ago.
Since the publisher hasn't sold any of his songs for
over a decade, his wife asked the publisher how much buying the songs back
would cost. The reply was: "Are you f*****g crazy! I'm worth a
fortune when he's dead!"
While Courtney Love may not be accurate in detail,
her assessment of the industry characterises it well.
Jonathan Sturm
I gather that music publishing contracts are
ghastly. Book contracts aren't nearly that bad, and the best can negotiate
reversion of rights after a term of years. Publishers only give that
reluctantly, and it's still not standard. Mostly reversion is only when
the work is out of print.
I get the distinct impression that the APRA isn't
a very strong outfit...
To: All staff, Los Alamos National Laboratory From:
Bill Richardson, Secretary of Energy
Dear staff members:
Due to an unfortunate overreaction by Congress to
our minor difficulties in the security area, we're being forced to tighten
up just a bit.
Effective Monday:
1. The brown paper bag in which we store the
computer disk drives that contain the nation's nuclear secrets will no
longer be left on the picnic table at the staff commissary during lunch
hour. It will be stored in "the vault." I know this is an
inconvenience to many of you, but it's a sad sign of the times.
2. The three-letter security code for accessing
"the vault" will no longer be "B-O-B." To confuse
would-be spies, that security code will be reversed. Please don't tell
anybody.
3. Visiting scientists and graduate students from
Libya, North Korea and mainland China will no longer be allowed to wander
the hallways without proper identification. Beginning Monday, they will be
required to wear a stick-on lapel tag that clearly states, "Hello, My
Name Is . .. ." The stickers will be available at the front desk.
4. The computer network used for scientific
calculations will no longer be hyper linked via the Internet to such Web
sites as www.swedishbabes.com, or www.hackers-r-us.com. Links to all
Disney sites will be maintained, however.
5. Researchers bearing a security clearance of Level
5 and higher will no longer be permitted to exchange updates on their work
by posting advanced physics formulas on the men's room walls.
6. On "Bowling Night," please check your
briefcases and laptop computers at the front counter of the Bowl-a-Drome
instead of leaving them in the cloakroom. Mr. Badonov, the front-counter
supervisor, has promised to "keep un eye on zem" for us.
7. Staff members will no longer be allowed to take
home small amounts of plutonium, iridium or uranium for use in those
"little weekend projects around the house." That includes you
parents who are helping the kids with their science fair projects.
8. Thermonuclear devices may no longer be checked
out for "recreational use." We've not yet decided if exceptions
will be made for Halloween, the Fourth of July or New Year's Eve. We'll
keep you posted.
9. Employees may no longer "borrow" the AA
batteries from the burglar alarm system to power their Game Boys and
compact-disc players during working hours.
10. And, finally, when reporting for work each day,
all employees must enter through the front door. Raoul, the janitor, will
no longer admit employees who tap three times on the side door to avoid
clocking in late. I know this crackdown might seem punitive and oppressive
to many of you, but it is our sworn duty to protect the valuable national
secrets that have been entrusted to our care.
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