Part One - Part Two - Part Three - Part Four
2: Thieves, Burglars and Pirates
Before I get into analyzing U2’s manager’s version of the “what went wrong with the record industry” party line, let me clarify some personal stances. I’m not a proponent of file sharing as a method of mass transgression of copyrights. I never used Napster. I’ve never used KaZaA, eMule, Limewire, BitTorrent or any of the many other file sharing networks or applications to access copyrighted content, and I’ve never held an account for any of the networks that require one. I am a proponent of strong and durable copyrights (though not of the duration Disney recently purchased from Congress), I believe in paying copyright owners for their intellectual property (though I am happiest when most of the money goes to the actual creator). To this extent I’d guess I’m substantially in agreement with U2’s Mr. McGuinness.
On the other hand, like the majority of people I have a history of copyright transgression. A clear memory of my history with recorded music is buying a box of Radio Shack 90 minute tapes and recording a couple dozen records from my family’s LP collection the summer before my freshman year of college. I’ve made and received my share of mix tapes (and these days, CDs). I’ve gotten a few copies of CDs burned by friends, although it’s something I don’t ask for and don’t encourage. I’ve downloaded a few oddments that are technically infringing though not copies of commercially available materials, like Danger Mouse’s Grey Album remix, and I’ve downloaded a few (literally, a few) things, via various unorthodox tools, that by my own standards I really should have purchased.
I’m not a saint or a purist about copyright. I’m a realist and occasional opportunist. I bring it up not to proselytize my position or justify my transgressions but to stress that while I’m about to disagree strenuously with most of what Mr. McGuinness has to say about problems in the record industry, my objections are not based on a moral disagreement of what and artist or even that less empathy-inviting organism, the copyright owner, deserves. What I object to is stupid ideas that won’t fix anything and which would cause harm disproportionate to the problem they purport to solve anyway.
Revisit with me a moment the purported motive of Mr. McGuinness’ speech:
What I’m trying do here today is identify a course of action that will benefit all: artists, labels, writers and publishers.
In the first part of this essay I invited examination of this sentiment for what might be missing from it. Of course, the omitted party is the listener, the consumer, the fan.
Is this an inadvertent slip or a rare piece of unvarnished honesty? Have things come to the point that the industry insider sees the listener, the sole and absolute foundation of every iota of their fortunes, as nothing except a problem to be controlled?
I’d argue that whether it is conscious or not, leaving the listener out of the benefits equation is no mistake. One thing that’s clear in this speech is that the party line position is obsessed with the idea of stealing. Mr. McGuinness invokes the idea of stealing (and related concepts like thievery, burglary, crime and of course piracy) sixteen times in this speech. This is critical for two reasons. The first is that it is indicative of how thoroughly the listener experience, listener desires and listener rights have been left out of the equation. Mr. McGuinness does not pay even the smallest lip service to the value consumer of recorded music, or to the solution of the industry’s woes as having anything to do with satisfying the consumer’s desires or expectations. The closest he comes to addressing the fan as anything other than a presumed thief is his argument that people are enjoying live concerts more than ever, as based on the “generally unresisted” trend towards increasing ticket costs.
The second thing this identification of listener as thief illustrates is that it has become fundamentally unquestioned dogma within the record industry that the decline of major-label CD sales has been caused exclusively by illegal file sharing. There is not a hint of alternative or complimentary causes for the declining fortunes of the CD in this speech. And indeed this sentiment has been largely picked up and echoed by most mainstream media coverage. For the most part, the only thing that varies in this assessment are opinions on how the industry let the situation get so out of hand, and what can be done to rectify it now.
Leading the charge on the “what now” front is another commonplace component of the party line: the belief that there is, at least theoretically, a technical fix for the problem of file sharing. The speech invokes the SDMI as an example of what went wrong with the industry’s response to the problem of file sharing in the 90s. It is telling that the only culprit identified for the failure of this initiative is the US government’s “overzealous” protection of the public from “cartel-like behaviour.”
The latest take on DRM isn’t the only technical fix McGuinness proposes. A somewhat new facet of his thesis is the preposterous claim that ISPs could easily detect and disrupt file sharing traffic of unauthorized copies of copyrighted materials if they wished to do so. The examples McGuinness provides in the full speech reveal a depth of ignorance about what the internet is - indeed, what it means to “share files” - that is all too common in the record industry - and that might amuse if it was not the foundation of so much ill-founded and harmful ideas about changing government policy.
Which leads us to the third predictable leg on this tripod of industry-standard arguments. First, the dominant role of the consumer is intrinsically as a thief. Second, that the offending activity - file sharing - could be disrupted by a technical fix. And finally, that if the gatekeepers of this nefarious filesharing paradise, the ISPs, cannot be convinced to voluntarily deny the thieving consumer access to their stolen files via technological intervention, they should be compelled to do so by law.
These are all pretty much versions of arguments that the industry have been pushing for a decade - the relatively new component is the focus on ISPs and digital hardware manufacturers as the primary targets of ire and the perceived source of remedy.
It’s not really a surprising change in position. The industry’s only extant “solution” to the issue of file sharing - civil suits against individuals - have been an extravagant failure, and indeed statements made during the recently publicized first such suit to go to trial suggest that it has been a costly failure.
The shift of focus to players with deep pockets is inevitable. McGuinness takes what is coming to be a common tactic, to lay the blame of the situation at the anarchistic leanings of the silicon valley crowd - their “hippy values.” Of course, the same sort of pejorative assessment of communistic values has been slapped on anyone who has suggested that the increasing accessibility of information is an inevitable outcome of the information age, and that demanding that the technology makers and gatekeepers of the information infrastructure fundamentally alter their business to cater to the content crowd is rather the tail wagging the dog.
And really that part of it is just smoke, anyway, a bit of rhetorical flourish. The real meat of the argument is summed up in one question: “who’s got our money?” It is a sentiment that is mirrored in the idea that music industry “assets are exploited by the buyers” of MP3 players (the legal use of format-shifted tracks from legally owned CDs is ignored as usual), or the response to the existence of premium cost internet access for “heavy downloaders” with the rhetorical question “isn’t that our money?”
While it’s impossible to say for sure, I suspect that this line of reasoning will characterize the next act in this sad farce of the record industry’s decline. In the next chapter, I’ll examine these arguments about the causes and remedies of the record industry’s sad estate, and whether they’re likely to find much relief out of the pockets of Apple and Comcast.
Part One - Part Two - Part Three - Part Four
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