The Supreme Court Tuesday is to hear arguments regarding P2P companies and whether they should be held liable for illegal activities done with their devices. The plaintiffs in this case are the copyright owners, who have such small imaginations that they cannot see a glittering new market when it gets their notice through their legal departments. [OutragedModerates have seeded BitTorrents of the briefs on this case]
As a creator of media that has copyright protections, I'm no pollyanna when it comes to this brave new world of file sharing. But it seems to me that these huge conglomerates are being totally disingenuous in their claims that they're really just out to protect the artists.
Red Herring reports:
"We will not welcome theft masquerading as technology," said Dan Glickman, president and CEO of the Motion Picture Association of America. "No business, including the movies, can keep its doors open, its employees paid, and its customers satisfied if pirates and thieves are allowed to run ramshackle over this country's basic protection of the right of individuals to the ownership of their creative expressions."
The only problem with this statement is that they are not arguing for individual copyright ownership, but rather their corporate copyright ownership. It may seem like splitting hairs to some, but don't be fooled by "We're protecting the artists" posing.
Mitch Bainwol, chairman and CEO of the RIAA, had equally harsh words. "The Groksters of the world are not innovators. Far from it. They are parasites who hide behind technology as they steal from the artists that create entertainment," he said. "They jeopardize the incentives to create new artistic works for society to enjoy."
Again, more false rhetoric from companies that are all about getting as much as they can out of their talent, while paying them as little as possible. (Do we need to get into the music industry's sad history in exploiting artists, leaving them in debt from touring while the execs made millions and the companies made billions?)
How bad has this really been for the multinational media conglomerates?
Faced with the disruptive nature of file-sharing software, the entertainment industry has been fighting a tough battle. According to research firm InStat, over a quarter of those in the entertainment business say they are losing significant revenue to piracy. However, the Recording Industry Association of America (RIAA) reported last week that U.S. CD shipments rose in 2004 after four years of decreases.
Damn. Those inconvenient facts again.
Sometimes it almost seems like ego. For example, Sony/Epic has refused to release Fiona Apple's third CD Extraordinary Machine, which was completed nearly two years ago now -- which sparked a grassroots movement that, if nothing else, is a fairly strong indication that Sony's beancounters made the wrong call in shelving the recordings. It really seems to fly in the face of common sense, especially after When the Pawn went platinum.
The "official" Sony Fiona Apple website makes no mention of her latest creative work. They own it, but they won't release it.
However, whether Sony wants to be a player or not, the market exists. Extraordinary Machine is available for download here and elsewhere.
[Aside: To my own music tastes, this album gets five stars. Well worth a listen ... or 10.]
Fordham University Professor Doron Ben-Atar notes:
There is no denying that commercial use of copyrighted material is both illegal and immoral. Yet estimates of the cost of piracy are misleading. They don't account for the fact that piracy fuels demand for entertainment products: 2004 was a banner year for pirates; it was even better for the movie industry, where rentals and sales of DVD and VHS movies accounted for nearly $26-billion. When Hollywood cries poverty, as the victim of pilfering teenagers and workers who live on a couple of dollars a day, it is laughable....
Companies that try to suppress the development of P2P software are similar to the early 19th-century English Luddites, weavers who tried to save their jobs by smashing the machines. The plaintiffs' demand for monetary compensation is a ruse. P2P companies don't have the resources to pay the studios should the Supreme Court rule against them. The studios seek to destroy the P2P companies just as they did Napster in its previous incarnation. Our intellectual-property regime is their weapon of choice.....
Unable to go after actual violators of their intellectual property, the studios target P2P developers whose programs, among other things, facilitate some piracy. But it is impossible to contain the abuse of technology without undermining the free flow of knowledge that is the prerequisite for innovation. In order to prevent 12-year-olds from downloading their favorite movie, the plaintiffs and their allies in the Justice Department are threatening our most cherished economic assets -- the public sphere of knowledge and the conditions of intellectual exchange.
Ah, but that is precisely the point of these suits. What's really at stake here is not what kind of real damages these companies are experiencing. No, this is about ownership and who controls the media out there. P2P threatens their stranglehold on music and media distribution. The multinational media conglomerates arguments against illegal file sharing are really just the back door to their real agenda. You see, the fact that the software can be used to share files legally is precisely the point. That is what they're most afraid of. That is what they want to stop. If we're legally prohibited from sharing with each other, and if companies are legally prohibited from creating and distributing P2P file sharing software, then we have to turn to them, the big boys, the Media Dons.
Which means they get to decide what we experience. And how much we pay for it.
On the other hand, P2P distribution would allow artists to distribute themselves. Marketing would be viral. Smart mobs would pick the bestsellers. Individual consumers would choose their own playlists.
And suddenly all those MBAs in marketing and distribution and management -- and let's not forget the lawyers, they need to be paid, too -- don't have anything to do to justify their jobs. --That is, assuming they are doing something to justify their existences now.
As for arguments that this would be bad for the United States, well, these media conglomerates are multinationals, not uniquely or strictly American.
Mark Morford sums it up well:
This, then, is the bottom line. The rules are changing fast. Great songs want to be free. Fiona Apple is singing anew, despite the corporate crackdown and the RIAA sneers, and it's all just more proof positive that you can't really contain or restrain raw human talent, can't kill the need for true creative prowess, and that goddamn flower is gonna crack through that corporate concrete no matter how much weed killer they pour on it. The commercial dictatorship is crumbling. New songs are being sung, in spite of the old rules. Really, really good songs. Sung by a goddess.
The question now will be whether this Supreme Court is going to get back into the corporate protection racket and be the goons for the multinational Media Dons.