Re: GG and Napster response

[Sean Malone <spm29386@oregon.uoregon.edu>]

Dear List,

    This is the first time I've responded to in Internet message regarding
copyright and Napster. I have refrained from doing so because debates of
this type often degenerate very quickly and are usually written to do
nothing more than incite. However, having read this post, there are so many
things that bother me about it, that I've decided to throw in my two cents.
This is not a personal attack on WK by any means, so please don't take it to
be as such. In many places, it's hard to disseminate whether or not WK
actually holds the opinions expressed. From the look of it, it seems WK does
for the most part, so I addressed them directly. Even if they aren't held as
such, I still stand by my opinion of them, but I don't mean to indict WK if
such is not the case.
    It's not entirely Gould-free, but I recognize that this topic is, well,
largely off-topic, and I apologize. However, I am compelled as a musician to
address the issues brought up by WK.

    As a lot of you probably have, I've read dozens and dozens of opinions
about Napster, and I've noticed some continuity among those who are in favor
of it: 1. Those in favor of it are rarely, if ever, professional musicians,
and/or their livelihood isn't made by selling a product that was generated
by their own creativity. 2. If they are musicians, they are of the
garage-band variety and are simply thrilled to death someone downloaded
their demo. 3. They want something for nothing. 4. They want to have their
cake and eat it, and eat it, and eat it, and eat it.
    I make a substantial portion of my living from being a musician. I have
over 50 recordings available commercially worldwide, and perform all over
Europe and North America. The musicians I've recorded and performed with may
not be well known to most of the members of this list, but they hail from
groups/artists such as Yes, King Crimson, Dream Theater, David Bowie, and
Tribal Tech. The purpose of me mentioning this is to establish that even
though they don't generate the sales of folks like Michael Jackson, these
aren't exactly garage bands either. So I'm writing from a particular
experience base.
    Many things bother me about the opinions in WK's post, because they are
a reflection of what the Napster herd believes as well - that they not only
have some claim on someone else's achievement, but that they should
determine what it's worth - not the artist.

> Respecting the above quote, I'm reminded of a TV documentary on Bill
> Monroe, the great bluegrass musician.  He told the story of a Nashville
> recording studio inviting him to come to Nashville to make a recording in the
> 1940s when the recording industry was just getting started.  Back in the
> 1940s, of course, making records was not a basis for musicians to earn
> enormous sums of money, so  Monroe said he "didn't have time" because he "was
> too busy making a living."  Making a living was, for course, going from one
> job to another, performing his music in person for a fee.  Monroe told the
> story, of course, to contrast his experience with today's situation.  Today,
> making a record is hitting paydirt because records can lead to riches and

    And why don't they deserve every molecule of good fortune it brings
them? It is their hard work, regardless if anyone finds it to be shallow or
lacking (perhaps in the case of some of the music that is popular today).
There are a great many people that find enjoyment from all kinds of
entertainment, and the artist who generates it deserves every penny. Should
an artist only earn money from a live performance? If so, what is an
"equitable" fee?

> fame.
> Question:  What is the difference between Monroe's time and modern times?
> Answer: technology and infrastructure.  Next question:  To what extent can
> recording artists take credit for technology and/or infrastructure?  Answer:

    Artists don't attempt to take credit for technology or infrastructure,
they are two aspects of disseminating music today. A means of producing it,
and a means of distributing it. Are you suggesting that if artists aren't
responsible for having created Napster, then they should rightfully be
victims of it? Or that the public has some sort of claim or right to
distribute it on Napster or other electronic means?

> probably to no extent at all.   What lesson, then, can fairly be drawn?
> Maybe:  that some recording artists are making claims to undeserved
> "compensation."  Somehow, I think that the Napster/copyright issue touches on

    Could you please tell me how a recording artist makes an undeserved
claim on the sale of their own work?

> fundamental concerns of the kind philosophers have long thought about.  What
> would St Thomas have thought of the issue (with his theory of the "just
> price")?  Or what conclusions would Marx  have drawn (with his labor theory

    This is an important issue, but entirely separate from that of artists'
rights. Fair market price for recordings is set by large corporations. As to
whether or not it's actually fair is entirely debatable, but to suggest the
unauthorized distribution of someone's work (Napster) as an "equitable
reaction" is reprehensible. You can't justify taking someone's work because
you feel that the money they earn from it is "undeserved." Simply don't buy
the product. You don't have any claim or right to someone else's work. Is it
OK for me to Xerox a book instead of buying it, because I feel the book
industry is making too much money? If enough people stop buying books
because they are too expensive, the industry will respond. If enough people
Xerox books because they feel they are too expensive, the industry, and the
artists, will perish.

    In the year 2000, should we still be citing the work of Marx as relevant
social doctrine?

> of value)?  And what about the details of the copyright statute?  Were they
> handed down to Moses on the Mount, or are they transitory policy judgments

    The concept of copyright being transitory is propagated by those who
wish to take what isn't theirs to begin with.

> that were formulated in pre-high-tech times?  Might copyright protection be
> overly extensive such that Napster is an equitable reaction?   At what point

    Does the idea of right of ownership apply only to "high-tech times?"
Throughout this post, copyright has been linked with "compensation". These
are two separate issues. I'm not sure how anyone could consider that at some
time, a work of art or creativity is to be turned over to the mob. A mob
that claims entitlement because it feels the money earned from it is
inequitable.

> does "compensation" for intellectual creativity slip into unearned windfall?

    How can any financial gain be unearned by someone's hard work and
discipline? More importantly, an artist is not "compensated" for having made
a recording, or a painting etc. The word compensation connotes a trade of
some sort simply for the time and effort it took to produce the work, and
nothing more. "Artist compensation" is tantamount to having an expense
account reimbursed. An artist *earns* a *royalty*. Record buyers aren't
compensating me for my years of work. They are deciding if my work pleases
them enough to pay the price that has been placed upon it - it's their
choice.

    For those of you who feel that "rock stars" reap unearned rewards, you
cast your vote by not buying their products, or going to their concerts, not
by taking their work for free. It's not yours to take or give away. The
millions of dollars Sony makes would never stop me from buying a Gould CD,
and never inspire me to copy it and distribute it. It's not Sony you're
hurting.

> Would a one-year copyright protection suffice to protect artists' equitable
> claims?  A two-year protection?  Five?  John Rawls, the social philosopher,

    So you at least feel that an artist has some "equitable claim" to
his/her own work. But you also feel that someone other than the artist
should dictate how long the work is theirs. (By indicating what length of
copyright would suffice.) Or how long they should be permitted to earn money
from it. And furthermore, to decide at what point their "compensation" is
"unearned." Then perhaps the same is true of software...of literature...of
textile products....of furniture....... Adobe doesn't deserve the money it
makes from sales of their software? That's tantamount to saying it's OK to
shoplift from Sears because they're a large corporation and they won't miss
the money===> it's ok to take songs off of Napster because the artists are
overly "compensated" for their work, and the big corporations won't miss the
money. Furthermore we, the record buying public, are entitled to the music;
to make it public domain? This is unconscionable. If prices are too high for
goods (and I'm speaking of items that are more or less for entertainment,
not for sustaining your life) then the public speaks by low sales. The
public continues to buy CDs at an average of $16 a pop, so that's where the
price will stay unless people cast their votes by not buying the CDs. You
don't cast your vote by distributing someone else's work as *you* see fit -
it's not yours to begin with.

> said something about the social system needing to provide enough incentive to
> keep people creative and productive, but not providing for much beyond that.

    And just how much is that incentive? Enough for a nice apartment? Or a
house? 1 car or 2? Perhaps the fall of the Soviet Union is indication enough
that this is outmoded thinking.

> Is Rawls' thought relevant to Napster?  Is his thinking justified?   How much
> "compensation" does a rock star deserve?

    Are you suggesting that there is some sort of upper limit to how much
musicians should earn for their work? By your own reasoning then, is it
worth $10? $200? $1,000,000 before it should become the property of the mob?
Artists aren't *compensated* by the public. An artist is entitled to however
much, or little, is gained through the sale of recordings, where the
consumers have the free will to choose whatever they want.

    Another part of this debate is the "good" that Napster does for an
artist. I'm sure it's true that some have bought CDs having previewed the
music first. But this is offered only has some lame bargaining chip against
the rampant impropriety of Napster. Those who have introduced my music to
someone else offer this as a justification for taking it in the first place.
And there are plenty of people who are content to having only an mp3 of a
recording rather than the actual product, hence the popularity of portable
mp3 players, and the countless testimony of people who have hundreds of them
on their hard drives. What's worse is that their are those who claim some
right to "kick the tires" before they buy the car. As if their wishes and
whims are analogous to something "working" or not. Should I be able to read
an entire book before I pay for it? How about eat the whole Whopper before I
decide if it's worth its price?
    Most who enjoy the promotional aspect of Napster sell very few CDs to
begin with. There might be exceptions, but I have yet to encounter even one.

> Finally, and in deference to the subject of this board, what might Glenn
> Gould have thought of it all?  He talked about anonymous Medieval artists
> (like stone-carvers working on cathedrals) making permanent contributions
> without ego or recognition beyond earning their daily keep.  I also seem to

    And what was the nature of their anonymity? Was it self-imposed, or did
it have something to do with feudal lords and their serfs? Or perhaps the
crushing authority and fear of the church? How many stone carving
entrepreneurs were there in Medieval England, who weren't just in desperate
need of earning some money to feed their families? And if this *is* the
noble ideal, why has it vanished?

    In many ways, the indentured servant analogy is relevant to the
relationship an artist has with a recording company.


> recall him writing that he would have been content for others to take bits
> and pieces of his work and create something of their own.  Napster would have
> been perfect for that, so I'm intrigued by the following question:  If

    You're combining two things here that have nothing to do with one
another. Gould's idea is for listeners to cultivate their own musical
"divinity". Not to appropriate someone else's achievement, claim it for
yourself, dictate how much an appropriate "compensation" is, then distribute
it as you please. Gould was reaching out to the new listener, not the new
thief. By "taking" bits and pieces, he didn't mean "stealing".

> presented with the Napster issue, would Gould have opted for copyright
> protection and years and years of royalties? or would he have opted to
> contribute (for the most part) to the general public domain -- like the

    Why is it only a contribution to the public if you don't have to pay for
it? Are you intimating that because Gould's discs must be purchased, that he
somehow has not contributed, or has contributed less to humanity? If given
the opportunity of freedom from his serfdom, wouldn't this Medieval stone
carver value his own work enough to be paid for it? It's surely *his*
choice, not anyone else's to be placed upon him. (As Napster users place
upon the artists by taking their work.)

> proverbial Medieval stone-carver or Bill Monroe 60 years ago?  Ah! The
> difficult philosophical choices we face when the rubber hits the road.  :)
> WK Caine.
> PS:  Unless bpl@UMICH.EDU  is a super-rich rock star, I hope he/she
> understands that the above is not directed to him/her.  It's really directed

    Does one need to be super-rich in order for this to be an issue? Am I
any less entitled to dictate how my work is to be disseminated to the public
because I am not a millionaire? You have no claim to my work. You cannot
excuse yourself from stealing from me by offering some ineffable claim of
publicity for throwing my work into the shark pool. You don't have the right
to dictate what my work is worth. If you feel the price is to high, you must
simply not buy it. An artist does not offer a *service* to the public, for
which they must be "compensated". They provide works of art for the public
to consume, if they so please.

    Cars are too expensive. But the public needs transportation! I think
I'll go Napster-me a Lexus this weekend....


> to people who feel that Napster is cheating them in their just rewards when
> rewards are measured in huge sums of money.  Obviously, copyright laws are
> important and make certain creative activity possible.  WKC

    Then what's the "important" part of copyright and the "overly-extensive"
part? How does copyright make creative activity possible? I don't understand
what you mean by this.


Sincerely,
Sean Malone