OT: an argument I heard on file-swapping music

[basschair]

This is not an attempt to start an argument, just a discussion.

The other day, I was talking to a friend about downloading music via the file-swapping methods. I'm pretty much against downloading music that is either widely available for purchase, from a performer or group that is against their music being traded, and similar situations. However, he had an admittedly decent point, summarized here:

What about music that is of limited availability? Old recordings, live recordings not for sale, music from albums not being pressed anymore? What about music that is supposed to be available for sale, but is nowhere to be found (a strange situation, but one which I have run into)? What about bands that allow for live recordings during their concerts, as long as it is not marketed/sold?

Now, I admit that I have dowloaded various music, but I'm pretty sporadic in my use of file-swapping software, and I basically download songs/pieces which I would buy if they were available: this includes some Soul Coughing live stuff, radio performances, M. Doughty performances, as well as from a few other bands, and a lot of different classical stuff, mainly because it is very difficult to get a recording with A) good sound/production, B) good performers and C) authentic performance practice.

So, what do you think about this? Also, do you think that if a performer or group records and markets it for sale, but that it isn't available to you for some reason (no, I don't mean that your local record store was out of stock...that's not a good excuse), you should be able to look for a download? Do the performers or companies have some responsibility to distribute an item to a market where it is advertised?

Thanks for your thoughts.

paul

[FingerFlicker]

I am against it in general as well, but I have no problem downloading some obscure album by a band that never put out anything else and whose music is no longer available. I'm thinking of Cyclone Temple. Bought the CD LONG TIME AGO and lost it. Was surprised to find the whole thing on Kazaa in 10 minutes.

[basschair]

Yup, that's exactly the type of situation I'm talking about.

[Chris Cavell]

I have a feeling that the influence of the royalty companies goes a bit too far. I imagine that file swapping for audio may one day take on the shape of a virtual jukebox. Streaming one time play only. The "jukebox" company would pay the royalties via advertising, just like radio, and we, the audience would listen for free. I personally believe there is no problem with file swapping audio if the owner to the rights of the audio has no problem with it. At the same time, I don't like the level of "legal extortion" exerted by the royalty companies. (Let's say a restaurant has a kitchen employee that like's to listen to a portable radio, technically, according to the law, the restaurant owes royalties for the increased productivity and overall improved quality of work by said employee which attracts customers, BUT the radio station already paid.) So, that said, I, on a personal level do leave it up to those who own the rights to the music as to whether or not it should be allowed for free distribution, however, I am very happy that something like this has occurred that will hopefully let the world know about the double and sometimes even triple-dipping hands of royalty companies whose primary job (at least if you look at the numbers) is to distribute most of the collected money to the major labels, keeping those labels at the top of the market making it ever more and more difficult for start-ups to gain a footing in this economically biased and cutthroat business.

[soundsurfr]

What about music that is of limited availability? Old recordings, live recordings not for sale, music from albums not being pressed anymore?

There's no reason to complicate this. If the owner of the copyright authorizes the copying, then it's legal. If not, then it's not.

What about music that is supposed to be available for sale, but is nowhere to be found (a strange situation, but one which I have run into)?

What do you mean it's "supposed to be available for sale"? The unavailability of legal recordings does not make illegal recordings legal.

What about bands that allow for live recordings during their concerts, as long as it is not marketed/sold?)

Legally authorized. No problem.

Do the performers or companies have some responsibility to distribute an item to a market where it is advertised?

No. As stock runs out, the company incurs a production cost to create new stock. The company will make a business decision as to whether or not the production costs will bring an appropriate return on investment. This is true for any product. There is no legal obligation to sell or distribute more copies. In fact, if you want to drive the price up on certain high-demand products, you can even cut back on your production. Manufacturers of luxury items like wine and high-end automobiles do limited production runs all the time for this reason. Of course, if people were to start distributing illegal copies of the item, they would most likely go out of business.

[soundsurfr]

I personally believe there is no problem with file swapping audio if the owner to the rights of the audio has no problem with it.

I think everyone believes this. It's exactly what the law says.

At the same time, I don't like the level of "legal extortion" exerted by the royalty companies. (Let's say a restaurant has a kitchen employee that like's to listen to a portable radio, technically, according to the law, the restaurant owes royalties for the increased productivity and overall improved quality of work by said employee which attracts customers, BUT the radio station already paid.)

Technically, this may be true (and I'm not sure that it is) - but have you ever heard of it being enforced? I would think that BMI and ASCAP have bigger fish to fry.

[Chris Cavell]

have you ever heard of it being enforced? I would think that BMI and ASCAP have bigger fish to fry.

Yes, it is enforced, heavily. It's the job at ASCAP and BMI that no one wants (many business owners hand it over to their bouncers) and is usually handed to the rookies to take care of. The job of actually notifying, collecting, and or serving notification of a suit is sort of a right of passage for many ASCAP, BMI, and SESAC rookie employees.

[basschair]

Yes, it is enforced, heavily. It's the job at ASCAP and BMI that no one wants (many business owners hand it over to their bouncers) and is usually handed to the rookies to take care of. The job of actually notifying, collecting, and or serving notification of a suit is sort of a right of passage for many ASCAP, BMI, and SESAC rookie employees.

And I definitely agree with the need for this type of enforcement, in theory. I'm not sure what percentage is calculated, but music used in such things as sporting events must be licensed and paid for based upon viewership, which can add up to serious money. Of course, that's putting it simply, and I'm sure that there are exceptions and such, but I bet that Pink got a poop-load for the past few years of NBA usage of that one song...what was the name again?

[Cliffy_Boy]

have you ever heard of it being enforced? I would think that BMI and ASCAP have bigger fish to fry

It was just "enforced". A dentist had to pay royalties for music he played while treating patients in the dentist chair! Kind of makes my root canal not feel as bad.

[Chris Cavell]

I absolutely agree with the idea that the person or organization that owns the rights to artistic end-product should be compensated for the use of their product when their product is one of the things that "sells" another item. I just think that the licensing organizations mentioned earlier that have lobbied their ability to enforce and collect into the letter of the law have in many cases gone too far.

Keeping with the example of a basketball game, in the letter of the law, these licensing agencies have the RIGHT to collect from the NBA, the franchise, the venue, the broadcasting television station, and the broadcasting radio station independently for the same instance of a single product.

In any other arena besides music, the rights to use "intellectual property" in such a way would be decided between the owner of the "intellectual property" and the user. In our free-market economy, direct negotiations over the cost of the use of intellectual property with all of the parties stated above would be considered redundant (not to mention impossible: at a negotiating table where John asks Mark and Tom to both independently pay full price for a product that they are jointly using would be laughed at). Ask what you think you deserve from the primary client and let him pass on the price to the others involved in the total production.

Our accepted licensing agencies in the music industry have lobbied over many years to have certain methods of billing written into law that amount to little more than legalizing what at times can be viewed as extortion. Just because it's legal doesn't necessarily mean it's always right. The particular laws I'm referring to allow them not just to charge more than one entity for the same instance of a product, but to often charge each of them independent and unrelated amounts (in comparison to "ordinary" contractual negotiations this would be considered a gross overcharge or extortion).

Now, all that being said, I'm glad there exists an entity which takes care of a lot of the headache and sends me a check. I'm really happy that the check is as large as it is sometimes, but...I don't have to agree with the way in which it is collected and, I'd gladly take a major paycut to see the letter of the law coincide with the spirit of the law. But, I'm a small fish, and I doubt the big ones are willing to make such a sacrifice, as a matter of fact, they're doing everything they can to keep from making that sacrifice.

I hope I haven't offended anyone with this post, I also hope that I've managed to state my opinions on the matter in a clear fashion.

So, to sum it all up, I'm glad file sharing exists, and I'm glad the big fish have filed suits. These suits, for the most part, have resulted in equity decisions exonerating the defendents based upon similar arguments (though in much greater detail) as those above. Enough of these cases and equity exonerations may cause just enough people to see the rift between the spirit and the letter of the law to make some changes.