Category: Copyright

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Napster

I have followed, with some amusement, the misadventures of the American legal system over the insidious, corrupting, devilish program Napster.

Napster allows users to “kidnapster” music files from other users on the Internet running the same application. You log on and type in a search string and the Napster finds MP3 files on other users’ computers and allows you to download them onto your computer and listen to them.

Well, right is right and wrong is wrong. Is it wrong to “steal” music over the internet? Yes. Is it wrong to rip off young artists? Yes– but that’s what the music industry does better than a million internet users. Is the current system of distribution of music unjust, unfair, and grossly inefficient? Yes. It will die of it’s own contradictions.

I watched the debate and the court proceedings with amusement because the judge that tried to shut down Napster made a ruling that is ridiculous and will only bring scorn and ridicule to the legal process.

Here’s why:

1. Though shutting down the Napster site will temporarily stop people from using Napster to download MP3 files, there are dozens of other programs that do the same thing. When the Napster site was temporarily shut down last month, the Gnutella site had so many hits that it too went down. Shutting down Napster will have almost no effect on the distribution of music over the internet.

2. Sony has announced that it will sell music over the internet for $2.98 per cut. This is a bad joke. This is obscene. It is more obscene than millions of users sharing their music over the internet without paying the artist. This amount is so ridiculously high that it will only serve to increase the scorn and hatred of the music industry out there among computer hackers. If the music industry is going to sell music over the internet, the price is going to have to be about ten cents a cut. At this price, the music industry will– believe me– still make piles of money, because they will sell 100 times as much music as they currently sell.

3. The other programs that do the same thing as Napster don’t do it in the same way. Napster still requires a “server” which a judge could order shut down. Other programs, however, function in a more decentralized way. It may be impossible to shut down these systems by shutting down a small number of servers. A zealous judge would have to shut down everybody– which means it won’t happen.

4. Even if Napster, and Gnutella, and all the other programs succeed and prevail, the music industry will survive, and it will continue to sell music through music stores. In the first place, MP3 is not really a very good music format. The new generation of DVD’s will provide better quality sound and there will always be a market for disks. In the second place, even though it has long been possible to record music off the radio and television programs off the TV, the markets for CD’s and video tapes continues to grow. A lot of people just want to get the disk or tape in their hands.

5. The music industry will cease to have a cooperative monopoly (something the banks and oil companies already have) over the sales and distribution of music. Anyone can get on the internet and distribute and promote his or her own work.

6. Video is next. The fact that we cannot, at the present time, watch television programs when we want to, rather than when they are scheduled is, when you think about it, absurd. If Monty Python is on at 2:00 a.m. and I want to watch it, and the television station showing it wants me to watch it, why shouldn’t I be able to move that program to a day and time when it would be convenient for me to watch it? Furthermore, why can’t I watch programs that aren’t scheduled whenever I want to? Want that Dick Van Dyke episode from 1964? The news footage of the Munich Olympics hostage crisis? The Beatles appearance on Ed Sullivan? Someone should have it on file somewhere. If the television industry was smart– and I don’t think they are– they would put up web sites right now and announce plans to make the entire back-catalog of television programs available as soon as it is practically possible to make them downloadable. They would publish the specs for creating the compression algorithms necessary, and make it freely available to all.

Yes, I know, we already have the means with which to “time shift” television programs: the VCR. However, even after twenty-five years of development, most people still don’t use it regularly to tape programs they would otherwise miss. What do they use it for? To watch pre-recorded tapes rented, at outlandish prices, from a video store.

That should teach us something. For one thing, it indicates that there will continue to be a market for CD’s and video tapes in spite of new medias. For another, it indicates that a large number of people will never learn to master some new technologies.

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MP3’s

Let me make it clear, first of all, that I have no desire to save the music industry. The music industry consists largely of blood-sucking vampires who abuse, deceive, and exploit raw talent. A pox on all of their houses.

But, I do want artists to be paid for their work.

It is clear that there is no way to stop people from using the internet and their computers to freely copy music. It’s too easy. Even if you wanted to pay for the music, it is easier to download a copy from the internet than it is to buy a CD at your local record store.

But if the music industry can no longer sell enough CD’s to pay their artists, how will the artists be paid?

Here’s my solution: the government should impose a surcharge on all personal  internet accounts. The surcharge will be collected by all Internet Service Providers and remitted to an organization managed by representatives of the musical artists community. All artists who wish to be paid for their music will have the option of joining or not joining. This organization will find a way to track the volume of downloads for each member artist. Based on these numbers, each artist will be compensated directly from the fund.

The amount of the surcharge will probably only have to be about $2 or $3 a month or less.

The beauty of this plan is that the government is not required to monitor anybody’s downloads, or try to regulate internet usage. All it has to do is impose the fee and ensure that the money is funneled directly to the artists (and not to the parasitical music industry itself).

The only problem with this proposed system is that someone will have to develop a way of monitoring downloads and tabulating the numbers for each artist. I rather think that the makers of Napster, faced with multi-billion dollar law suits from the Recording Industry Association of America (RIAA) would be more than happy to comply. As for all those people who are paranoid of government intervention, it should be stressed that the monitoring is done by the proposed artists’ agency and not by the government or the recording industry.

There. Done. A remarkably simple and effective solution. I hereby copyright it.

All I ask is mere .01% of the take.

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Having it Both Ways

The State of Virginia just passed legislation that tries to give some force to the so-called “shrink-wrap software agreement” you supposedly agree to every time you install a software package on your computer. The software industry is “ecstatic”. This is their “crown jewel” of legislative achievements. If you wonder what “soft” money in politics really means, this is it.

Now, the naïve and gullible reader will ask himself a simple and natural question: why? Why would the software industry be so happy about a law that seems to make it illegal to do something that it has, supposedly, always been illegal to do? That is, violate the shrink-wrap agreement on your software application?

For fifteen years, we have all been installing these software applications and clicking on the ubiquitous “I Agree” button every time before being allowed to install the application.

Imagine if you read in the paper tomorrow that the government of Ontario was passing legislation making it illegal to speed on our highways. You would be rightly perturbed. If this legislation makes it illegal to speed now, why did I pay my tickets before this legislation was passed? Right….

The consumer-citizen has the right to make a few logical deductions here and invoke the natural right of expediency in order to respond to this blatantly hypocritical piece of legislation.

1. All software issued before this legislation was passed can be freely copied and distributed as you please. Obviously if the shrink-wrap agreement now has the force of law, it did not have the force of law before. So go ahead– copy away! Give Office 97 to all your friends! Make sure everyone you know can play with Photoshop 5.0! Sell copies of Quicken 98 at your fruit stand! All of these products were sold subject to agreements that, according to Virginia, did not have the force of law.

2. Since the principle of secondary contract agreements that take effect after a transaction is concluded (the shrink-wrap agreement is entered into after you already bought the software, when you install it on your computer) is now enshrined in law, the consumer should also take advantage of it. For example, you can send a letter to Microsoft saying this: “Acceptance of my payment for Microsoft Office constitutes an agreement between Microsoft and the purchaser that the purchaser will be compensated at his average hourly wage for any time spent attempting to recover work that was lost due to the deficiencies and instabilities of Microsoft products.”

You may be aware of the fact that, in spite of the shrink-wrap agreement, which states that the purchaser must return the software to Microsoft and receive a refund if he or she does not agree to the terms, Microsoft virtually never, in fact, refunds your money. Neither will the store that sold you the Microsoft product.

So get yourself a good lawyer, because it’s going to be a ride. Here’s what might happen: Microsoft will reject the agreement and demand that you either agree to the shrink-wrap license as it is written or… or what? Return the product? Ha ha! Now, I’m not so cynical as to think the worst of everybody, but some people obviously will simply make a copy of the product onto a CD and then return the original disk to Microsoft.

Fat chance. Microsoft knows that.

If enough people try this, I think we could have a real movement going.

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Photoplay and Copyright

Photoplay

I just can’t leave the issue of copyright alone. It comes up everyday in one situation or another.

Today, it was my son remarking that he wasn’t allowed to use an Albrecht Durer woodcut as the basis of a project he was working on because his teacher was afraid it would violate some rules of copyright and plagiarism. He argued that a painter who has been dead for 400 years can’t possibly have any works under copyright anymore, and that it isn’t plagiarism if you acknowledge the use of the work. This teacher was so paranoid of the copyright police, however, that she still refused permission.

Here’s an interesting fact. Though most “classic” paintings are no longer under copyright, a photograph of the painting can be.

Whoa! Let’s think about that. Let’s think a lot about that, because a lot of museums, including our own Art Gallery of Ontario, won’t let you take pictures inside their galleries anymore. Even when the paintings are hundreds of years old, as in the case of the “Old Masters” show they did recently. So if you can’t take your own picture, then you have to get a copy from somewhere else. A logical place to look is in an art history book with lavish illustrations. But, according to the copyright police, you can’t copy that picture because, though the work of art itself is public domain, the photograph of it is not.

[Added 2022-04-12: I am pleased to note that many museums do, in fact, allow photography of the art work, as long as you do not use a flash.]

Now, photographers who create original pictures can definitely copyright their work. If I am walking along a boulevard in Toronto and I see a bum who looks like Mike Harris poking through a garbage bin and I take a picture and then publish it in the Toronto Sun, that is my copyrighted work. I saw the image. I took the picture. I chose the aperture and the angle and the type of film. If I was a professional photographer, I may have developed the picture and printed it myself. I may have edited it on my computer, before handing it over to the Sun for publication. Fair enough. It’s my work. I deserve to get paid for it. Let’s leave aside the question, for the moment, of whether or not the bum should also get paid. The photograph has a certain value because of the intellectual and physical effort of the photographer. That seems pretty fair.

However, the same photographer walks into the Louvre in Paris and snaps a picture of the Mona Lisa. His goal is not to create something new and original (unless, like Marcel Duchamps, he wants to put a moustache on it). His goal is to create an exact, faithful rendering of the original, so that art students can study it in a text book at a mediocre high school somewhere in Peoria. The value of the image is determined entirely by the value of the work of Leonardo Da Vinci that went into it. But since Da Vinci has died years and years ago, the image has now become a part of cultural heritage, for all to share.

So why is this image copyrighted? Legally, in fact, it is. That’s an outrage. It isn’t entitled to copyright protection anymore. It really isn’t. It’s absurd. I refuse to accept this copyright. I refuse to acknowledge it. If I choose to scan that image into my computer’s memory and show it on my web page, I will.

Here’s another interesting case of aggressive copyright imperialism: the company that sells sheet music to high school bands insists that the band is not allowed to make any copies of the actual sheet music itself, no matter what. No photocopies, no overheads. But, we are told, the copyright laws apply to intellectual property, not physical property. Remember, this is why you can’t copy software or music CDs. Because even though you own the physical disk, it is the content of the disk that is protected.

So if a school buys sheet music for the entire band, and decides to prevent the paper copies from deteriorating by photocopying them and handing the copies out to band members, there should be no problem. Remember, the school has paid for intellectual property to be used by each student in the band. What difference does it make whether they read it off the original print or a copy of it? The school didn’t buy half a copyright. It didn’t pay $20 a sheet for paper. It paid for use of copyrighted material by each member of the band. If so, there is no ethical or moral reason why the band can’t access that material in any way they choose, including computer screens.

If that is true, there should be no obstacle to making copies of the protected material for your own use. For example, I used to tape all of my vinyl LP’s as soon as I bought them, in order to minimize the wear and tear on the fragile plastic itself. I paid for the LP. I own a right to use the intellectual property on it.

Well, the record companies are finally coming around to the fact that they can’t very well have it both ways. If the copyright applies to the physical object, the CD itself, than either the intellectual property is what is copyrighted—in which case you can make as many copies as you want for your personal use—or it’s the physical object that is copyrighted, in which case you can make as many copies as you want for almost anybody.

Who else should get Copyright Protection by These Standards?

My son plays bass in a high school orchestra. They recently issued a CD as part of a fund-raiser. They carefully obtained the correct copyrights for any piece of music that was not public domain.

However, my son frequently improvises the bass line. So he creates, through his own original and unique thought processes, a piece of music that is utterly his own. Should he be able to demand royalties for each CD sold?

That bum that looks like Harris—he owns his face, his hands, his ragged clothes. He owns his posture, the look on his face, the minute the photograph is taken. But it is the photographer who collects the royalty, not him. He doesn’t even get a share.

And who should get copyright protection but doesn’t have it yet…

That’s right—you and me. Your name and my name. Your address and my address. I chose to move to this address and I chose to have this particular e-mail address. I hereby copyright it. No use without permission. I’m not kidding. If you use my name and address on your printed envelope or your electronic mail, you owe me $50.

I register a software package I have purchased to do my home accounting. The software company sells my name and address to another software company, with the result being that I get more garbage in my mailbox, inviting me to subscribe to some stupid investment service. How dare they? What right do they have to sell my name? Who decided that I can’t copy one of their software applications to give to a friend—who would be pleased with the favor–but they can sell my name to another software company—to my great annoyance?

So I propose a simple act of parliament or congress that simply assigns the copyright of a person’s name, and his address and any other personal information, including medical or credit histories, to the person him or herself. Done. From now on, anybody who wants to sell this information must pay a copyright fee to the owners. The only exception would be the standard copyright exception: research, journalism, and reviews. Done. Justice at last.

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Mona and Copyright

The Mona Lisa is not copyrighted. It is in the public domain. You can copy it all you want.

Except that… well, a picture of the Mona Lisa is copyrighted. So you can’t take a picture out of an art book and put it up on your web page. How would they know? They would analyze your copy and look for faults. If your faults are the same as the photographer’s faults, he can sue you. But first he’d have to admit, I think, that he was a lousy photographer.

If you took a picture of someone painting a copy of the Mona Lisa, you could be in trouble: his painting of the Mona Lisa is copyrighted, even if it’s an exact copy. You’d have to black out his picture. But then, you still have a picture of him. Can he sue your for violating his personal copyright of his own face? I don’t think so.

What if you took a picture of someone’s picture of a painting of someone else’s pictures? Sure, maybe he’s got a copyright on his picture of the painting, but what right does he have to take that picture of the painting of other paintings? Does he have permission from the artists who did the paintings in the painting? I’ll bet he doesn’t. So if he sues you, maybe you can find the descendents of the artists and sue him.