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Here we are extending the discussion on piracy once again. Earlier this week prominent Jazz bassist and musician’s rights advocate Ben Allison wrote a pretty legit post about how modern commerce affects the arts. Give it a read, and if you’re interested, here are more of my thoughts on the subject…

I appreciate Ben’s points on intellectual property and the need to “raise awareness” among those in our culture who truly want to abide by applicable laws and support the business side of music. I also agree with Ben on the suggestion that musicians will always make music, regardless of the ups and downs within the “industry.”

But I smell a sense of entitlement in his perspective on the career of music. He asks, “Will choosing to become a professional musician continue to be a viable career choice in the future?” Um… I don’t know the answer to that, but one doesn’t get to CHOOSE whatever career one wants to have and expect that it will be viable. At one point manufacturing horseshoes was a more viable “choice” for career than it is now. Then technology transitioned a little and all of a sudden manufacturing tires became more viable. And in the near future it is certainly possible that tires will be replaced by another option for transportation. It is, in fact, entirely possible that teleportation becomes not only feasible but commonplace, rendering the entirety of the automobile, airline, shipping, and hotel industries completely obsolete and therefore not viable “choices” for a career. One industry thrives, another suffers. That is the way of things.

Indulge me in some imagination. Digital media developers (software, etc) have made a lot of money in recent years, and most of that money used to be made by the music industry. What if record labels had seen that coming and refused to sign on to distributing music in a digital form? What if musicians had opted to not allow record labels to be their only option for overseeing the production of their art?

Another example: You know who doesn’t make HALF the money they used to make on music sales? Best Buy and Sam Goody. But I don’t hear those companies whining about needing more protection for their industry. They just changed products a little – more washers/dryers and less compact discs. Just learn to change with the times. That doesn’t sound so hard, does it?

Ben ends his post by saying that “we should work to strengthen those laws and institutions that help to protect and enable us to sell our music in a fair way.” The way I see it, if music retains its commercial value it will be because musicians continue to provide something valuable to society, not because we erect laws and institutions to protect our industry. I’m not saying that there is no place at all for regulations within the complex world of free market capitalism. Rather, I’m simply suggesting that musicians, in their efforts to be compensated for their art, look first to THEMSELVES as music creators/providers for their job security, not to laws and regulations.

In other words, I want to see musicians try as hard as possible to be as good as they can be. Let your desire for job security be one of your motivations to get better. Now, many musicians do just this, but find that “as good as they can be” doesn’t cut it. Well, bummer. My version of “as good as I could be” in basketball never cut it either. Other kids were ALWAYS better than I was, and without trying as hard as I did. So I changed fields. It turns out that music is a field that I’ve been able to find success in.

Listen, I don’t want to sound prideful or overly confident here. I’m nothing but grateful that music continues to be a field that I can make a buck in. But the fact is that the music industry is a place where some are successful and some are not, and I don’t think the credit/blame lies with the music industry or with game-changing technological developments. I know that the piracy issue isn’t cut and dry, but that whole discussion really only affects certain aspects of the music world. Live performance may in fact be the new way for musicians to make the bulk of their profits, as opposed to recordings. Or maybe you can be the guy who invents a new format for music listening that is piracy-proof. Either way, I have a gig this weekend and I have to do some prep for it. And I need to work more on mastering that 4-limb single stroke exercise.

Wow. Awesome conversation on this issue, everyone!

In case you missed it, I posted some talking points and discussion questions about the issue of music piracy yesterday, and great comments ensued. Below is a quick summary of noteworthy points made, with quotes uncredited (just read the actual comments if you want to see who said what).

Ultimately, piracy is, according to the law, stealing. But “stealing” itself is perhaps a more difficult and complex concept than this, especially given the vague nature of the piracy laws’ wording, and the difficult-to-pin-down consequences of a lossless replication technology such as mp3s.

The water is further muddied by the “we all do it” ethic, which, considering the example of speed limits that even police officers regularly ignore, reminds us that some laws were never intended to be enforced to the letter. But a lack of enforcement doesn’t legitimize the “we all do it” ethic, because while the fact that “we all do it” is maybe a good excuse, it is no real ETHIC at all.

So it seems the issue of piracy revolves mostly around consumer demand and old vs new business models. Mp3s and the iTunes distribution platform changed the game in the music industry, and although the new playing field is still unstable, consumers still behave as they always have. If content can be easily obtained for a price that seems fitting to the consumer, then it will be purchased and not stolen.

Thus ends the summary of comments/discussion on yesterday’s post, so now I’m throwing in my two cents…

Laws don’t work very well when their express intent is to merely enforce old business models. Personally, I’m convinced that this is the bottom line of current piracy laws. Seth Earnest pointed out that, in 1992, my Pearl Jam radio-recorded mix tapes were actually not illegal at all. Nobody was accusing mixtape composers of “stealing” back then, and no new developments have been discovered in the ethics realm over the past 20 years. What has changed is the PERCEPTION of whether after-market duplication helps or hurts the businesses involved. Record labels and distribution companies PERCEIVED that grainy cassette duplications wouldn’t hurt their sales, but would rather probably help their music be promoted and distributed. But the perception reversed when the digital revolution happened, and now the after-market duplication all of a sudden poses a threat. But… this is all just perception, and as such completely unprovable. If it had always been apparent that what we now call “piracy” actually helps the music industry, then laws against piracy would probably never even have been introduced. But it is all speculation. Sure, there are stats to show how many people have pirated music or how many downloads have happened illegally, but there is no way to prove that those doing the pirating would have otherwise made legitimate purchases. Huge grey area there.

I’m venturing into waters I don’t necessarily trust here, so bear with me as I think out loud (um, in print). Consider the oil industry. They haven’t enacted any laws to stop the development of electric automobiles. Rather, it appears they just bought all the electric auto technology and sat on it, insisting on operating with the same oil-based fuel revenue model that they’ve had for the last 80 years, presumably because the infrastructure of this model is too big to easily reconfigure to adapt to electric cars. If the music industry perceived that mp3 file technology was a threat to their 1992 model, then they should have just bought the technology and squashed it. There are no laws against that kind of business behavior, as far as I know. That’s a sucky reality of capitalism for consumers, but it’s a reality nonetheless. The mistake for the music industry was deciding that mp3 technology was too big to squash while simultaneously deciding that the 1992 music sales model was too big to change.

Case in point: iTunes originally had an agreement with the labels that they distributed for, an agreement that mandated all files sold through iTunes would be encrypted with a code to protect against after-market duplication (Fairplay DRM). This was the record label’s doing, according to Steve Jobs, and Jobs thought it a pretty dumb idea. And then, in 2009, the LABELS (not Apple) changed their minds, and the DRM encryption was dropped from iTunes files. This change of heart was the result of sales INCREASING on DRM-free experiments like Amazon.

Wait, the “protection” against piracy ends up producing less sales, so you ditch it? So… you were never concerned about piracy anyway, were you? Of course not. Businesses don’t care about ethics, laws, or piracy. They care about profit and sales. The laws about piracy were brought about by concerned businesses, but the concerns were never ethical. The “stealing” rhetoric is simply an attempt to put the larger world of ethics and morality on the side of the concerned businesses. As was rightly pointed out in yesterday’s comments, real STEALING is when I take something from you so that you no longer have it. Copying/sharing mp3s is merely utilizing the aspects of a technology the way they were designed to be utilized.

Closing thoughts…

“Hey! You can’t put the soda fountain itself in the lobby of the restaurant! Then people will just refill their soda whenever they want instead of paying for more of it. That’s STEALING! Oh wait… maybe we should just offer free refills as part of our beverage service? That would be new and competitive of us! No, no… let’s not. Taco Bell already did that. I know! Let’s get those amazing new special soda cups that create more soda every time you take a sip! And this additional magic soda won’t cost us anything, because of the magic cup! Everyone will want to try it! But… we should make a law prohibiting anyone from sharing a sip with their friends. That way we can bask in our amazingly lower overhead costs (because the magic cups cost almost nothing to manufacture), and force everyone to buy soda the way they always have, pretending as if the magic cup technology doesn’t even exist! This idea won’t backfire on us, will it?”

More closing thoughts…

“No! You can’t buy an electric car! Your car will run without gas then! And every mile you drive without using gas is like STEALING money from those of us who sell gas and have always assumed that to be the only fuel for a vehicle.”

“Um, sorry dude… the electric car is what I want. Why don’t you just start building electric cars instead of drilling for oil? Or maybe you could make your gasoline cheaper than electricity. Or maybe you could invent a special glass that magically refills your soda every time you take a sip. Oh… Apple already did all of that? Hmmm… I see. So, what used to be your pie is now their pie and your pissed about it. Yep, that sure is a bummer for you. But I still like my electric car.”

With all of yesterday’s hoopla about SOPA, it’s maybe time to pose this topic for discussion: What constitutes piracy? How and when is it committed? What role does the owner of a copyrighted product have in preventing/promoting the piracy of their product?

Follow up questions: Was using my cassette player to make a grainy and bad-sounding duplication of a radio station broadcast of Pearl Jam’s “Alive” an act of piracy? Was making a “mix tape” for my friends in high school an act of piracy? What do I do if I want a copy of an out-of-print album that is not available in mp3 format?

Additional talking point: iTunes used to have a barrier (protective code) on their mp3 downloads, which the record labels that used iTunes insisted upon, fearing that they would lose money if users were allowed to freely transfer their mp3s to one another. Now the labels have changed their minds, realizing that they will actually SELL MORE mp3s if they don’t have the protective code. How does this decision affect the piracy discussion?

These are questions I’ve spent a lot of time thinking about, and it’s been difficult to find a solid framework on which to build conclusions, despite each side of the argument acting as if the answer is obvious. Let’s get some conversation going here…

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