The day the music industry died

There are some industries that just make your blood boil with rage. Some are exploitative. Others just plain nasty. And some are morally and ethically bankrupt.

Some will happily sell out their own parents for a buck or two, before moving on to their siblings. Others will happily market to kiddies, the less able and true bleevers.

The worst will hypocritically defraud their employees while using hamfisted tactics to ensure that no one is defrauding them. And if no one is defrauding them, they will simply invent scenarios where such fraud is still being perpetrated.

But when it comes time at the end of one's career to sit up and declare to the saint who guards the entrance to retirement heaven that they've been diligent and ethical workers in the service of all things fair and good, there will just be some who, in an ideal world, should be on their way to retirement hell. And usually, it will be for having taken a flying leap and clearing that thin line for each and every single sin in the first three paragraphs by a country mile.

Yes, it's been a long time, but it's time I handed out another flogging to the music industry, an industry that is consistently setting the limbo bar lower and lower on ethical activity.

In this landmark case, a woman was fined USD $220,000 for sharing 24 songs. This will send her to the poorhouse. At the Sydney Morning Herald online, this blog post prompted 386 responses over the space of a weekend.

I suppose the first question is, just who, exactly, was she defrauding? This is the central question when it comes to this case.

Copyright infringement is based on the underlying principle that intellectual property, such as music, may only be played if you've paid for it. But let's be perfectly clear here, if you've paid for it, you still don't own it.

The rights to the music itself is still owned by the copyright holder. Which means that the CD you just bought can't be played over loudspeakers in shops, or podcast. You really only own a sort of licence to the software. And this is over-simplifying things quite a bit.

The whole thing is massively overcomplicated and it's really only the manufacturers who benefit. Really, it could should be simpler than this. If you have paid for it, it should then be yours to do whatever you like with it.

This includes uploading it to the net for everyone to access.

So somewhere along the way, someone has let the side down, and sold all of us out.

Let's go back to this case. 24 files were illegally shared. Who was being defrauded? The article doesn't say what Jammie Thomas was doing in this case, so let's just make it up and say that she was downloading and not uploading. (She was downloading, incidentally)

In this case, Thomas would have downloaded a file that would have been sitting there to download or not. The file itself doesn't move, it is only copied.

Would she have been depriving the entities who created and manufactured these files of any money? One would have to prove that by downloading these files, Thomas definitely didn't intend to pay for them.

Yet in none of these cases, as far as I can tell, are any of the plaintiffs/"victims" being asked to provide evidence of this. This is morally dubious - although legally, this may be enough to demonstrate a prima facie mens rea of dishonesty, whoever said the law was moral?

More importantly, where's the gap where the stolen goods were and aren't any longer? For theft to exist, surely someone should actually be deprived of something?

Oh, OK, so that missing thing is the right to benefit financially from something. This takes us back to the previous question - how do we know that our downloader didn't intend to pay for the downloaded files?

So now we've gone circular, let's look at the next item on the agenda.

What is the actual idea behind copyright?

Copyright is supposed to ensure that the creators of artistic works are adequately compensated for their efforts. The copyright itself may be sold and if it is, it’s usually to the record company in exchange for certain things, such as recording and marketing costs, all of which appear to be surreptitiously charged back to the performer eventually. Even if the performer doesn’t end up losing money.

So musicians (and other creators) get shafted, eventually.

If a musician doesn’t use a record company, they’re a lot better off morally, but they don’t usually sell. Mainly because there’s a lack of several things:

1. Marketing. Record companies exist to market ready-made product. And not a lot else.
2. Recording. Record companies can fund recording facilities and provide a red carpet to skilled personnel that would normally not be available to mug wannabes.
3. Distribution. An area under threat by the internet. Regardless, record companies do this.
4. Payola. We know that record companies still do this. Denial only makes you look silly.

But here’s the thing. Do musicians need any of the above?

1. Marketing. Musicians like to get their product across to as wide an audience as possible. Apart from the musician’s own megalomania and vanity, is there any reason why this desire needs to be satisfied?
2. Recording. Is there any reason why a one-stop access point to the personnel and facilities above is required? Wouldn’t this kind of arrangement be considered anti-competitive in any other industry? Why can’t musicians arrange this sort of thing themselves? Wouldn’t it be better if musicians sourced their finance through commercial arrangements outside the music industry, as they’d be arguably better off?
3. Distribution. It’s the 21st century, people.
4. Payola. Really, payola is just a kind of marketing. So is it required, as I pointed out when I looked at marketing?

I’m now going to throw the baby out with the bathwater by suggesting a fifth one?

5. Compensation. Music and other artforms are hobbies. What specifically is being compensated for that doesn’t exist in other hobbies? Should musicians, for example, be compensated at all? Given that record companies own the rights in quite a lot of instances and still claw costs back from musicians, isn’t it a complete and utter lie to suggest that musicians are actually even getting compensated?

So it is looking increasingly bad for record companies. On the one hand, they do actively market the goods they sell, and should probably expect to be paid for this.

On the other hand, when what is being marketed heavily is the Britneys and Justins of the world, aren’t we rewarding general rubbish by even contemplating paying for any of this in the first place?

The world would certainly be a better place if corporate juggernauts like the Pussycat Dolls had no chance of recouping their marketing costs by selling CDs to kids. They’d be forced to tour instead and make their money the old-fashioned way.

And as for struggling up and coming musicians, shouldn’t they work a day job and practise their hobby at night, like every other hobbyist out there?

And this goes for creators of other artforms as well, although the effects of file sharing will be less.

I’d like to go all the way and lump musicians into the same basket as other entities in the music industry. Really, I would. It’s just that you can’t make a case that they’re as consistently evil as the record companies themselves, no matter how hard you try.

However, by frequently doing deals where their rights are assigned to record companies, they’re almost complicit.

Musicians should just sell their wares. If it gets copied, this is all well and good. There really isn’t a case that can be made where copyright holders get preferential treatment over anyone else selling round plastic discs that have stuff on them.

One big-name act has actively embraced this philosophy, and has recently made the announcement that it will now "sell" its next album online. It won’t even come with Digital Rights Management, it will just be regular, glorious MP3 files. The best part is that these particular musicians have even gone so far as to make paying for the download completely optional, and the end user can choose how much they pay, if they pay at all.

In this article in The Times Online hysterically titled “The Day The Music Industry Died” it is pointed out that Radiohead’s strategy is not even new. However, they’re the biggest band to have tried it to date. Hell, the Brian Jonestown Massacre has made their entire back catalogue available as downloads in Ogg Vorbis format for years.

The best part, though, about this strategy, though is that it cuts out the record companies all together. You have to love that.

We are at the dawn of a new era. One where one group of social parasites – artists, or at least recording artists - is forced into legitimacy and another – record companies – is wiped from the face of the earth.

I would be savouring and enjoying this, however, it will all come just too late for Jammie Thomas. And this is really upsetting.

Disclosure – this blogger is a musician in his spare time while he works a day job. So there.