"Hatch Warns Labels, Don't Make Me Come Over There and Spank You"

July 13, 2000 4:05 PM

"Hatch Warns Labels, Don't Make Me Come Over There and Spank You" Oooh! This is gonna be good. [ From Inside via Dan Lyke's excellent Flutterby. ]
posted by baylink (20 comments total)

Omigod. I'm actually agreeing with Orrin Hatch. What strange bedfellows Napster doth make. :o)
posted by aflakete at 5:44 PM on July 13, 2000

( caution: long post, in which I'm likely to stray slightly off the Napster topic.

Canes with which to beat me will be provided, along with coffee and snacks, after the posting.[1] )

Prepare for your heads to twist from the wind as I appear to suddenly and rapidly change sides.

Before I begin, I want to try to clearly state my stance on this whole issue, which I believe is bigger than just Napster.

1) I'm a massive propronent of Free Information.
2) I believe that the 'system' within which we live doesn't allow for Free Information, and therefore must change.
3) I do not believe that flagrantly violating the current system is the proper way to change it; the basis of capitalism is a Good Thing that's been distorted, and if we break one aspect of it, we break all of it.

There's been an overall trend, aided greatly by the Internet, towards opening of information. As evidence, I submit the Microsoft Anti-Trust decision, the availability of information regarding political figures, and others which I'll bring up as they occur to me.

The current system doesn't allow for someone to live by giving away their knowledge. To survive we need to make money. To make money, those with talent produce physical things (paintings, songs, web pages, screws, automobiles, food, etc) or provide services (instructing, delivering products, repairing products, etc.)

Those who provide products and services which are deemed worthwhile earn more money. Worth is determined by the masses; supply & demand.

To use this specific instance, Napster provides a service; they aid in the transfer of information. This service drastically increases the supply, vastly reducing the monetary worth of the product (music), without providing a means of rewarding the producers of the product. [2]

Napster doesn't provide for an alternative for people to live within the current system, it breaks the system rather than changing it.

I know, I know, it doesn't sound like anything's changed. Hang on, the good part's coming. I warned you it would be long.

To change the system, rather than break it, the 'masses' need to demand the system be changed. For the masses to demand the system be changed, a better option has to be presented to them.

If you're going to take away someone's ability to survive, you're going to take away their ability to produce. Most people don't like it when you make it even more difficult for them to survive.

There's been discussion in a number of open source oriented web sites (esp. /., esp. revolving around Microsoft & Kerebos) about the need for a trial that tests freedom of software.

Most Open Source Software (OSS) and/or Free Software Foundation proponents are waiting for a test of the GNU Public License (GPL), as it's currently the most recognized banner under which Free Information rallies.

Napster has changed this though. Everyone from the preteen who can't afford the newest Hanson album, to the teen who can't buy the latest Rage Against The Machine album because they live in a rural area, to the raver who can't get CDs of their favorite DJ to the retired school teacher who can't even find vinyl of their favorite hits from the 50s [3] can now have their desires to hear their music - get their information - satisfied.

Every one of these people would be willing to reward those producing for their product by whatever means they have available. A 'thank you', a monetary reward, whatever. Napster doesn't provide that ability.

That pretty much sums up my problems with Napster.

What Napster has done is made these people aware that an alternative means to enjoy the product is available. Napster has made it so all these people (the number 20 million was mentioned in the article) are aware that the system is flawed. Made them aware that out there, somewhere, is a better method.

No matter the result, we're seeing history being made. If Napster fails miserably, and is forced to shut down, the people will demand that an alternative be made available to them.

Napster isn't the perfect solution. Neither is Gnutella or FreeNet, all of these are flawed in that they don't allow for a reward for the producer, they don't give the producer the ability to live.To change the system, rather than break it, the 'masses' need to demand the system be changed. For the masses to demand the system be changed, a better option has to be presented to them.

I think I've said everything I wanted to say, for now.

[1] That was a joke, I can't give you sticks. The opportunity to flame, on the otherhand, I'm quite able to provide. Reward me as you see fit.

[2] Yes, it's possible to use Napster to do research (an arguement I really enjoyed ZachsMind) then use the current system to reward the producers (by buying the album), but it doesn't enforce such a reward structure.

[3] All these examples are based on real people I know who use Napster, and their justifications for doing so.
posted by cCranium at 6:56 PM on July 13, 2000

I'm uncomfortable with this idea people keep repeating that artists, and perhaps other people, somehow deserve to be paid for their work. I sure wish everyone had believed this when Red Planet Software was a going concern: I was working my ass off writing some damned elegant code, and if I'd been paid what I apparently deserved to be paid for that work, the company might well have stayed alive long enough to ship its product.

I don't think anybody deserves money just for working. I think people deserve money other people agree to give them in exchange for work. If you hire someone to sing at your wedding, you should follow up on the deal and pay them for their work.

This does not mean that allowing record companies to legally strongarm you into paying for extra copies of CDs you could just as easily copy yourself, or for copies of MP3 files you could *far* more easily copy yourself, is a good idea. Demanding that copyright laws based on scarce, hard to duplicate physical media be applied verbatim to recorded digital music makes about as much sense as designing the interstate highway system around horse-drawn buggies. The old assumptions just aren't true anymore.

-Mars

posted by Mars Saxman at 8:48 PM on July 13, 2000

The cat's already out of the bag. Pandora's box was inevitably going to open. The technology simply allows that. Fighting this is like telling gravity to go away.

And if the Powers That Be get their way, this proliferation of music will just go underground again until it finds another way. Information wants to be free. Maybe those who own the information want to be paid, but the information itself will continue to find new channels that get it out there. Just like electricity seeks the fastest path to the ground.

The only way to stop it is to make it illegal. Hatch made some very astute points about fair use. The only way to make this illegal is to make fair use illegal. Which the public will cry bloody murder over. And it's impossible to police.

I'd be happy to pay for music after I've downloaded it, IF I liked it. The direction this is going though is the exact opposite. The music industry wants people to pay before they download, which I will not do. Many will not do this. I'm tired of paying for an album after only hearing a couple tunes on the radio, taking it home and a few months later I realize I just don't listen to that album anymore, because most of it is crap.

I do go back regularly to my Billy Joel albums. Practically every song he's ever done I personally enjoy (except for the crap about Christie Brinkley). There's a handful of other artists who I play periodically. Oingo Boingo comes to mind. Most of the rest of my collection prior to my recent binges of online CD purchasing just sits on the rack and doesn't get played. Who's fault is that? Mine, cuz I fell for the advertising and purchased a CD after only hearing one or two tunes. I simply won't do that any longer.

But at the same time, when I download a bunch of tunes from an artist on the 'Net, I already have their music. If I like the artist and can afford it I WANT to support them, but many out there won't care. Or in the case of many they can't afford it anyway. So if they can't afford it, they don't deserve to have it? That's like saying you should only listen to the radio if you have both the money and desire to support that radio station's advertisers. It's not the consumer's job to care about such things. Had radio somehow been made 'pay for play' when it started, no one would have bothered to buy a radio.

Remember DiVX? No? That was basically an attempt to make DVD pay for play, and it crashed and burned.

Since musicians first started recording their stuff in a studio, that recorded song has been the equivalent of a commercial. "Like this? Buy our record." They get a radio station to play their "TOPFORTYHIT" and people buy records.

In the early days of airwaves however, the control of music available had to be made at the source. Once it's broadcast, you can't control what radio signal device hears what's played. So the record industry found a way to insure that all radio stations pay them a royalty fee every time a song is played. This has over time turned radio into the wasteful monstrosity that it is now.

Ever tried getting your stuff played on the radio? It's a legal mishmash now. I've been trying to get radio stations in my area to play local music but they all have excuses. Their playlists are now decided by committee somewhere in another state. They're all owned by conglomerates who have simplified the legalities of this for their own survival and safety. Some only play stuff set up through BMI or whatever, so they can cut one check to one organization, rather than several little checks, one to each artist. They don't WANT to mess with the little guys. They can't afford to. So the little guys don't get heard, and the upshot of this is you get Backstreet Boys and Madonna. The artists who kiss RIAA ass continue to get heard, and the smaller bands trying to make a name for themselves are squashed and forgotten.

I have an album by Buck Jones called "Bliss." Great band. Mine is one of the last CDs they ever cut. They didn't make it. They broke up. Only six months before they gave up the ghost, I happened upon them at Trees in Deep Ellum. They'd been at it for years, and were trying really hard, but it was obvious the effort was taking its toll. There are thousands of great bands that no one will ever hear because of the way things are now.

And what you're asking for is to have the same thing that happened to the radio happen to the Internet. Where information --not just music-- is only available for a fee. Whether it's through corporate advertising or subscription fees, what's criminal is that the power stays in the hands of not the artist or the consumer, but the moneybags treating some artists like indentured servants, and ignoring the ones who can't or won't play ball.

The airwaves are already a top40 pop wasteland. Let's not have that happen here too.
posted by ZachsMind at 8:56 PM on July 13, 2000

Hey Mars,

I'm always bothered by those pesky extra chapters in the novels I buy. I mean, I only want some of them, cause only some of them are good, so why should I pay for the rest? It's obvious oppression at the hands of the publishing houses, I think.

I'm sorry if I sound like a prick, I certainly dont mean to be, but why are the record companies "strong arming" people into buying "extra" tracks when they sell a cd? With the proliferation of the Brittany Spears of the world we may all be missing that music is an artform. It's not, and shouldnt be, a grab bag poopoo platter of tracks people want.

It'd be easy for me to just go and steal what I wanted, but we don't allow that. Just because people can trade songs digitally doesn't mean they should. People worked on those songs, and are selling them. Last time I looked, when you take without paying for something someone is selling, it's stealing. Whether we're driving a car, horsedrawn buggy or whatever.
posted by Doug at 9:03 PM on July 13, 2000

Mars:

I'm uncomfortable with this idea people keep repeating that artists, and perhaps other people, somehow deserve to be paid for their work.

So you're willing to work for free? Great! Why don't you come up to Canada, we can use a good coder we don't have to pay.

I don't think anybody deserves money just for working.

Neither do I, and I never said they did. I said that there needs to be a system in place for people to reward producers, or the producers will stop producing.

The current system, which is massively flawed, rewards some producers for producing.

Atlas will Shrug, to beat everyone else to the arguement.

Zach:

I'd be happy to pay for music after I've downloaded it, IF I liked it.

But you don't currently have any method of doing that, because Napster doesn't provide one. One of my points is that Napster's lack of a reward model is it's greatest downfall.

So if they can't afford it, they don't deserve to have it?

That's exactly right.

I can't afford a Jaguar, do I deserve to have one? I can't afford a palatial mansion 20 kilometres outside of town, with a huge staff to clean it for me, and a fat pipeline so I can work from there. Do I deserve to have these things?

Once it's broadcast, you can't control what radio signal device hears what's played.

I agree, with this and with everything else you said about radio play, but radio isn't a distribution method, it's - like you said - a commerical.

Radio stations buy the right to broadcast the information. Commerical interests buy time on that broadcast to sell their product. Enough radio listeners buy the products they hear advertised to make the advertising worthwhile. It's the same with broadcast TV. Everyone gets paid for their part of the process.

And you get to research whether or not you like that song. The vast majority of songs you hear on the radio are available as singles. If you like a song on the radio, you can buy the single, and know you're getting something you like.

I have an album by Buck Jones called "Bliss." Great band. Mine is one of the last CDs they ever cut. They didn't make it. They broke up.

Thank you for proving my point, it's always nice to have inadvertant help.

The reason they broke up? They weren't getting paid. If their music was downloaded 1000 times from Napster, they wouldn't be getting paid either.

Which (I'm beginning to feel like a scratched record) is my problem with Napster.
posted by cCranium at 5:52 AM on July 14, 2000

The record industry benefits from a system where you pay BEFORE you listen. Independent artists benefit from a system where you listen and decide if you like it before you pay. Thus the battle lines are drawn.
Aflakete says above, "Omigod. I'm actually agreeing with Orrin Hatch. What strange bedfellows Napster doth make. " No kidding, Af. This is just the beginning. The people who "get it" are those who are into music and/or the net. It has little to do with party affiliation at this point. Liberal vs. Conservative just may be irrelevant for once. A trend in the making?
posted by Outlawyr at 7:24 AM on July 14, 2000

This is a very clever way for people who are irritated with Napster to fight back. (via slashdot, and I'm not posting it on the main page because there's more than enough Napster posts going on)

Basically, take random noise (in this case, a cuckoo is suggested) rename it as metallica_enter_sandman.mp3 and make it the same length as enter sandman should be. Napster users download it, and don't get quite what they're expecting.

One thing about this particular project I don't agree with is using someone else's music (the organizer's wife, I believe) in place of the file you're uhh... replacing. (I'm getting circular, now)
posted by cCranium at 7:43 AM on July 14, 2000

Doug glances off the edge of a point I've been waiting to see if someone else would make. To date, no one else has:

One of the reasons for the current "album" structure of commercial music (aside from economy of scale, and that doesn't seem to be bothering the CD-single and cassingle <shudder> people) is that the artist wanted it that way. Imagine Paradise Theater, by Styx, or any of dozens of other concept albums. The lesser tracks ride in on the coattails of the more popular stuff, clawing their way up because people "just got them, along with the hit they bought the record for".

That may be a reasonable concept to depend on, or maybe not.

I do know that if the micropayment people, like Digital (now Compaq)'s Millicent (an absolutely *happening* tradename, I think) had gotten off their ass much sooner, this wouldn't be nearly so dififcult to deal with.

Maybe MP3 will be the thing that finally makes micropayments sufficiently necessary to get them implemented.
posted by baylink at 8:35 AM on July 14, 2000

Maybe MP3 will become the new Orange. Err, Porn. Sorry.

(Huh?)

The Internet was rapidly shown to be a viable business method with the propogation of pay-for-membership porn sights.

(Previewing, and noticed the unintentional slip. I think I'll leave it in, I kind of like that)

Something that "The People In Control" constantly disapprove of, but something that the people who make things real - ie the public - desire.

Interesting.
posted by cCranium at 9:13 AM on July 14, 2000

Good point from Doug and Baylink about singles vs. albums. Napster is great for getting singles, but once you try-before-you-buy and discover that you like, say, Radiohead, I seriously hope you buy OK Computer, rather than downloading all the tracks in a hodgepodge and playing them in random order.

Most of my favorite artists are more album-oriented than single-oriented, and I would be missing out if I didn't hear their music in order, as they intended it to be.

I also think in some cases, like OK Computer, you'd be missing out without the extremely expressive, well-designed liner notes. Sometimes the music isn't just information, it's a total package.
posted by wiremommy at 9:30 AM on July 14, 2000

"[2] Yes, it's possible to use Napster to do research (an arguement I really enjoyed ZachsMind) then use the current system to reward the producers (by buying the album), but it doesn't enforce such a reward structure."

even if this argument could be made, which it cannot - how can the producers, et.al. be assured that those using napster will buy their products? -, napster and napster users are still violating the copyright law :

"...unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending." sec.109(b)

it is a commercial advantage for users of napster not to pay for things and mass distribute them, rather than buy them themselves. if they cannot afford them then they should not have them, unless they have the copyright owner's permission. (when did people start thinking they have a fundamental right for whatever and to do whatever they want and not suffer consequences?)

i'm not sure why people keep discussing the monetary damages wrought by such behavior - it seems a weaker argument is being used instead of just saying that They Are Breaking the Law.

if you don't like that fair use, and other limitations, on the distribution of copyrighted material is keeping you from enjoying 'free information,' then work to get the law Changed by taking an active role in government, writing your congressman, etc.
posted by alethe at 9:36 AM on July 14, 2000

even if this argument could be made, which it cannot - how can the producers, et.al. be assured that those using napster will buy their products

That argument was made. Any argument can be made. Whether or not it's valid is the purpose of discussion.

(I'm feeling like picking nits today. :-)

i'm not sure why people keep discussing the monetary damages wrought by such behavior - it seems a weaker argument is being used instead of just saying that They Are Breaking the Law.

Yeah, because Breaking The Law is a real concern when the following the law can mean I can't eat out my girlfriend, smoke a big-ass fatty then drive 110km/hour.

The Law is a good argument, one in which I believe should be powerful, but the unfortunate thing is that the law is flawed in many many ways, and there isn't a person out there that agrees with every law. Therefore, saying "You're Breaking The Law" has little impact anymore.

There are many more people who would rather break the law then take money out of their wallets, therefore the argument revolves around monetary damages.

I don't have a congressman, but your point is well-made. Obviously mine wasn't, because I've been arguing that changing the system is better than destroying the system for too long.
posted by cCranium at 10:10 AM on July 14, 2000

Doug said:

I'm sorry if I sound like a prick, I certainly dont mean to be, but why are the record companies "strong arming" people into buying "extra" tracks when they sell a cd?

Apparently my earlier comment was unclear. I wasn't complaining about album-length CDs with lots of filler holding a couple singles together; that is annoying but I wouldn't call it a major problem.

The situation that gets me mad works like this. Let's say a friend comes over to my house, I pop in a CD, and he likes it. To make the example more interesting, let's use October Project's debut CD, one of my all time favourites. My friend falls in love with the music and wants a copy. We take my CD into the office, pop it and a blank CD-R into a spare computer, and he walks away with the ability to listen to this beautiful music anytime he wants.

Except that this scenario is completely illegal, and I could be fined and possibly even jailed for giving him the copy. Never mind the fact that the CD in question is out of print. Never mind the fact that the band broke up years ago. Never mind the fact that they never made a profit on their record contract in the first place, and wouldn't see a dime of the money were you to somehow find a copy for sale new. It's still illegal. It'd be illegal to rip it to MP3 and send it to my friend via email or ftp or dcc or napster. It'd be illegal to copy it onto cassette tape. It doesn't matter that any of these things would be easier, simpler, cheaper, and more efficient than trying to buy the disc at a record store: unless the record company gets its tithe, it reserves the right to call the cops and bust me.

We have a natural distribution path waiting to happen here. The infrastructure (CD players, computers, CD-R burners, network connections, mp3 encoders, mp3 players) is widespread and ready to go. The law prevents us from using it - not because we are somehow hurting someone by making perfect copies - but because, once upon a time, it was necessary to protect publishers of books from knockoff artists who sold cheap copies of good books as the real thing. That's the scenario copyright law was designed for, and it has almost nothing to do with what we're doing today.

-Mars

posted by Mars Saxman at 11:45 AM on July 14, 2000

"... [I]t is a commercial advantage for users of napster not to pay for things and mass distribute them, rather than buy them themselves."Wrong. "Commercial advantage" is bound to profit gained from the work. A user doesn't gain commercial advantage unless they expect to profit from the use of the copyrighted work. Several judges ruled so.However, this was all made irrelevant with the "No Electronic Theft" Act (NET), H.R. 2265, which made computer "theft" of electronic works illegal regardless of profitability.
posted by droob at 12:32 PM on July 14, 2000

Thankyou cCranium and droob for pointing out the errors in my post : frustration can get in the way...

"The Law is a good argument, one in which I believe should be powerful, but the unfortunate thing is that the law is flawed in many many ways, and there isn't a person out there that agrees with every law. Therefore, saying "You're Breaking The Law" has little impact anymore."

i still think arguing the law is the best way to change it (if that is necessary - i think it would be detrimental to do so).
also, everyone doesn't have to agree with a law(s) for it to be enforced. smoking a "big-ass fatty," whether you agree that it should be against the law or not, will still get you some sort of punishment if you are caught because it is against the law (breaking). and it really doesn't matter what people would rather do if it goes against what they are allowed to do. the rather should mean that the person works to change whatever they think is wrong - i would rather smoke a "big-ass fatty" and not be punished than be punished, so i'll work within the system to change existing drug laws and legislation. is that such a hard thing to ask of someone who has strong convictions?
posted by alethe at 1:11 PM on July 14, 2000

"is that such a hard thing to ask of someone who has strong convictions?"

No, not at all. I think I'm still being unclear. You and I are in agreement; we're just trying to convince people in different ways.

I've used the 'it's illegal' argument many a time. My point today is that the legality of a situation, especially when inconvenient and difficulty to enforce on an individual level, really doesn't matter to most people.

It does appear, however, we are in disagreement over Free Information, and the need for change in the current system.

And when I say 'Free', think speech, not beer.

posted by cCranium at 2:18 PM on July 14, 2000

it still seems sad that, though a legal or financial argument is made against, people are willing to disregard an artist's wishes ( i thought these people were supposed to be fans ).

about 'free' : i'm not well-versed on operating systems or anything like that, but the GNU project sounds like something that is pooling resources and "making a better mousetrap" -- that sounds good to me.

posted by alethe at 4:51 PM on July 14, 2000

As for the legality of downloading an mp3 or making a copy of a CD for someone, you guys might want to watch the Senate Hearing on the Future of Digital Music from July 11th again. Hatch and Leahy were half-joking, but the fact is those guys DECIDE what's fair use from a legislative standpoint. Granted, it's still up to the courts, but ANY lawyer can now use that hearing as evidence that Senator Hatch said it falls under Fair Use. The RIAA president disagreed with him, but she doesn't sit on the Senate Judiciary Committee.

Where the line is drawn is where one can actually prove that monetary damages are occurring. Now, the guy running emusic.com has a sound point. He sells downloads of copyrighted music for a buck a song. If someone can go to Napster and get the same song for the same quality for free, that's gonna hurt emusic.com. But then you listen to the words of the guy representing Gnutella, and we see how not only the transmission of information, but information itself, WANTS to be free.

Electricity looks for the shortest path to the ground, gravity works whether we like it or not, and another law of physics is that information wants to be free. It will find a way. Legislation can only slow that down. It can't stop it.
posted by ZachsMind at 4:08 AM on July 15, 2000

Several people have asked "why isn't it good enough that you should stop because 'that's Breaking The Law'?"

Well, because the law is often an ass.

It's now legal to ride in Florida without a helmet.

It's still not legal to commit cunnilingus in SC or GA, and that blowjob could get you thrown in jail, too.

The reason that governments have the power to promulgate laws is to protect people from one another, and promote the common good. I don't see that the sodomy laws (to pick one example) serve either of those purposes...
posted by baylink at 3:51 PM on July 16, 2000