Sunday, February 21, 2010

More on copyright

There's a rather super comment from the wife on the subject of copyright which I have decided to pinch in full—with permission, of course.
The non-existence of intellectual property demands the existence of copyright. Observe:

Let’s begin from the assumption that there is no such thing as intellectual property – only physical property.

Pretend I have written some music, played it, and recorded it onto a CD at a material cost to myself of some £3000 and 40 hours of labour time. My CD is physical property only, and my estimation of its worth is £3000, plus let’s say £120 for labour (at £3 an hour, that’s a bargain), plus an ideal, though small, profit margin of 8% – a grand total of £3370.

I could make 337 copies of this CD, which would also be my property, and sell them for £10 apiece – fine. But it’s not in my interest to do so unless I sell all 337 copies at once. Because once I’ve sold the first copy, which is after all only physical property, the new owner of that CD and duplicate it and give it away for free, thus making my £10 copies less attractive in the marketplace and therefore less likely to find willing buyers.

Possibly my solution here is to invite pre-orders. Once 337 people have pre-ordered and pre-paid – and the £3370 is comfortably in my bank account – I can send out all of the CDs at once. Fine.

But suppose more than 337 people order a copy of my CD. Very well; I shall make more copies and make those available for pre-order and pre-payment too. In fact, I will make as many copies and sell as many pre-orders as the market demands; but nobody will receive their CD until that demand is exhausted and the profit guaranteed (by its presence in my bank account), because the minute I actually hand over the first disk, everything on it ceases to be my property and can be made available for free.

My other option is to make no additional copies of the CD, and to sell my single existing copy for £3370. (This is, for example, what happens with unique pieces of art.)

Essentially, therefore, if the CD and everything encoded on it is purely physical property, I have absolutely no incentive to make it someone else’s property until I have received the compensation I desire. This is not so much a problem if I sell it as a single entity to one buyer for £3370 (although I think few people would pay that amount for a music CD).

But if I want to sell copies of it at reduced cost to multiple buyers, it makes sense for me to hold onto all copies until I have as many confirmed buyers as possible. This could end up being ridiculous; there could be a time lag of literally years between when the first buyer pays me and when I send him his copy.

Buyer #1 obviously does not want to wait years; in fact, since he has already paid me for his copy of the CD, it is now his property, and I have no right to withhold it from him. But if I send it to him immediately, the CD and everything on it becomes his property, and he can duplicate it and give it away for free, meaning people will be less likely to buy copies from me, meaning I am likely to make a massive loss. In fact, if I sell him his copy for £10, he makes his property available for free, and nobody buys copies from me, I have made a loss of £3360.

But wait! There may be another way. Let us say that I agree to sell a copy of my CD to Buyer #1 as long as he agrees not to make the material on it freely available for x number of years, x being the time during which I reasonably predict demand for my music CD to exist. This will naturally involve a reduction in price to compensate him for voluntarily restricting his use of his property, but fine. If I can get all of my buyers to agree to the same terms of sale, they will get their property, and I will get my money, and all will be happy.

And lo and behold, we have just invented ‘copyright’: the agreement by which the buyer gets his purchase of property at a discounted price in return for not making that property freely available for x number of years. This enables the seller to compensate for that discounted price by making up the difference in volume of sales.

Since we have copyright, as a good way to satisfy both buyer and seller with respect to their property and money, I therefore conclude that intellectual property does not exist.

Given, of course, that I estimated the cost of producing an album professionally at some £257,000 (not including promotional costs) rather than £3,370, one can see that the required length of time to wait might be rather longer than the wife's illustration might warrant.

UPDATE: over at Kore Studios (owned by a friend of my brother's), you can get an album package—which includes 30 day exlusive studio time, an engineer and assistant and mastering—for £16,000 (inc VAT) [no direct link: go to Rates].

Also, Unity has a long and detailed article on the shenanigans indulged in by the music industry, including the financial breakdown for music tracks.

UPDATE 2: the wife replies to her detractors in the comments.
For all these people accusing me of various naive assumptions, I respond as follows.

First, I deliberately excluded record companies, gigs, merchandise, etc. in my thought experiment. I began with the premise that I wrote, performed, and paid for my home-made album myself, and this was the extent of my investment. Gigs, merchandise, etc. are not relevant.

Second, I worked on the cynical, but absolutely not naive, belief that if it is possible for people to distribute my product for free, some will do so. Naturally, as a businessperson, I wish to minimise the incidence of this, preferably to zero. This is not naivety. What is naive is for me to believe that there will be people who, although they could get my album for free, will choose to pay for it instead. I'm sure many people are indeed like this, but to rely on everyone's being like this is unsound business practice.

So what I end up with is the perfectly reasonable prediction that, if able, some people will distribute my stuff for free, and some people will acquire it for free. Because I am a greedy bastard, I don't want to quibble about potential lost earnings or potential gains from free publicity. I want to reduce some to zero.

Third, for a home-made album with no marketing or publicity (you'll notice these are nowhere mentioned in the thought experiment), 337 copies sold is a bit optimistic, even if it is the greatest music on earth, because word of mouth between friends and the friends of friends, etc. can only get one so far. If my completely non-marketed, non-publicised album can sell 337 copies, I'll be happy.

Fourth, I'm aware that whatever contract I and my customers agree about not reproducing my work for x time is not binding on third parties. If my customer's CD of my music is stolen, well, that's too bad for me. Hopefully the thief can be caught and made to compensate us both.

If my customer breaks the contract, however, this is actionable. It can be determined in court how many free copies my customer made or distributed, and I can present to the jury my estimate of how much potential earnings I have lost as a result. Obviously it won't be 100%, because not all of the people who got free copies off my customer would have bought it in an alternate reality. If the jury thinks my estimate is, on balance of probability, fair, they can award me those damages. If the jury thinks my estimate is unfair, they can choose not to. In fact, the jury can return a 'guilty' verdict without awarding me any damages at all except my court costs. This is all just as it should be. So quibbling about the amount of potential earnings lost, which is a completely subjective estimate, is irrelevant. It is not pertinent to the law whether this amount can be determined exactly; the law comes into force if I can convince a jury that this amount is greater than zero. If I can't convince the jury of that, too bad for me.

This is what court is for: to judge whether the contract has been broken, and at what cost. If the law required me to prove all of that before taking it to court, I wouldn't need the court at all.

Has that cleared up some of the objections?

Oh, and as someone who is involved in flogging my brother's albums, I can tell you that 337 is pretty darn optimistic—even when you have a loyal following after more than a decade playing gigs (which usually end up costing the musician money).

To expand, at the level at which most (part-time) bands play, they will make to money on playing gigs—in fact, gigs will probably cost them money. This is especially true in London, where promoters and venues have the upper hand because of the number of bands around.

Once you make the leap to being a full-time band—and are thus able to tour the country rather than your immediate environs—the amount of money that you have to make increases by thousands of percent. Whereas once you might have been happy if your earnings covered a couple of rehearsal sessions and the transport of your instruments to the venue, now you have to actually make enough to pay you to live—and to hire the venues and promote the gig.

In order to do that, you have to get lots of people in to see you—in every venue. In order to try to mitigate these costs, small bands will often support larger bands—and they will pay a fee to the larger band for the privilege.

So, without the record sales and without much (if any) money coming in from the gigs, you are left with merchandise. That is going to need to be paid for up-front—with all of the inventory problems that brings. This merchandise will also need to be carried around with you, meaning that your transport becomes more expensive.

In truth, it is those who claim that any but the biggest bands can make money out of merchandise and touring that are naive—not me.

35 comments:

Wearysider said...

Is this a serious post? really? it's so wonderfully naive I find it hard to believe either Mr or Mrs Devil could come up with something like this.

1st of all the assumption that everyone will decide to copy is based on what? that no one will value the artists work, how many pieces of freeware exist out there where the option exists to donate or buy a license do these companies go bankrupt? no that's because not everyone believes in something for nothing as your analysis would suggest.

Some people want to see more of what an artist produces and are willing to fund that by either purchasing a physical copy or by that other important detail your example wilfully ignores buying tickets to tours and buying merchandise.
If an artist produces shit then they don't sell it and no one feels they are worth being supported, their work is worthless and they don't produce any more shit where is the problem?

The whole Pirate party thing is a load of shit of course it is, but so is the copyright is sacred or necessary argument.

A worth while consideration is that the artist themselves makes very little from physical sales, the publisher takes a good slice which is one of the reasons artists increasingly rely on tour revenue, but then if the consumer buys their license via a download which carries fuck all production costs to the publisher the consumer still doesn't save much for a lack of physical copy.

Personally I'd rather a physical copy with the inlay and all the tat, I'm willing to pay for that I won't ever pay for a download from itunes where I get nothing but a series of 0s and 1s on my hard disc pretty much the same as if I downloaded from a pirate source, am I alone in this belief, not a chance.

A downloaded track is not a lost sale that is bullshit perpetuated by the music industry, it's 1 less person having wasted their time listening to the charts on the radio.

Devil's Kitchen said...

Wearysider,

"1st of all the assumption that everyone will decide to copy is based on what?"

It's based on the many millions members of Pirate Bay, Napster, etc. when they were at their height.

"that no one will value the artists work, how many pieces of freeware exist out there where the option exists to donate or buy a license do these companies go bankrupt?"

Don't be naive. Of course some go bust.

Those companies that have survived so far have other revenue streams, usually venture capital. Others Open Source their code but hold back crucial elements that require you to buy licenses, e.g. SugarCRM. Others work on selling support of one sort or another.

"no that's because not everyone believes in something for nothing as your analysis would suggest."

Not everyone. But many.

"Some people want to see more of what an artist produces and are willing to fund that by either purchasing a physical copy..."

Sure. But that is being undermined by those who won't.

"... or by that other important detail your example wilfully ignores buying tickets to tours and buying merchandise."

That is irrelevant. When you pay for a CD you are buying a CD; when you pay for a gig ticket, you are buying a place at that gig; when you buy a t-shirt (or other piece of merchandise), you are buying a t-shirt.

You really cannot download the music for free and comfort yourself with the notion that you have paid for it really, because you are going to pay for a gig ticket.

Many people do have this attitude, which is why gigs are so fucking expensive now.

"If an artist produces shit then they don't sell it and no one feels they are worth being supported, their work is worthless and they don't produce any more shit where is the problem?"

That isn't at issue. The issue is where people feel that the artist isn't shit and, instead of buying the music, they download it for nothing.

"The whole Pirate party thing is a load of shit of course it is, but so is the copyright is sacred or necessary argument."

Sure. But what the above post illustrates is how a copyright type contract might come about through practicality.

"A worth while consideration is that the artist themselves makes very little from physical sales, the publisher takes a good slice which is one of the reasons artists increasingly rely on tour revenue, but then if the consumer buys their license via a download which carries fuck all production costs to the publisher the consumer still doesn't save much for a lack of physical copy."

Tough. The artist voluntarily signed a contract with the music company; the buyer of the CD or download also did the buying voluntarily.

"Personally I'd rather a physical copy with the inlay and all the tat, I'm willing to pay for that I won't ever pay for a download from itunes where I get nothing but a series of 0s and 1s on my hard disc pretty much the same as if I downloaded from a pirate source, am I alone in this belief, not a chance."

Sure. Personally, I am willing to pay for the convenience of the download. The real point is that we can both make a choice and no matter what we choose, the artist gets paid.

"A downloaded track is not a lost sale that is bullshit perpetuated by the music industry, it's 1 less person having wasted their time listening to the charts on the radio."

And you call me naive?

DK

Wearysider said...

Further to my above comments,

If said recording is expected to sell 337 copies to break even at £10 a recording.

If it's crap then you're in debt as it doesn't deserve to sell nor will it be downloaded much.

If it's good, then it will be downloaded, now lets assume 300,000 people download that work on a budget of a little of 3K you can not begin to afford that level of exposure now lets assume 1% of those who downloaded it feel it's worth supporting your work (very low estimate for argument sake) that's 3,000 copies sold not the 337 you originally anticipated. would you ever have achieved that level of exposure any other way within your original means?

Devil's Kitchen said...

Wearysider,

"If it's good, then it will be downloaded, now lets assume 300,000 people download that work on a budget of a little of 3K you can not begin to afford that level of exposure now lets assume 1% of those who downloaded it feel it's worth supporting your work (very low estimate for argument sake) that's 3,000 copies sold not the 337 you originally anticipated. would you ever have achieved that level of exposure any other way within your original means?"

Yeah, yeah: sure.

But the point is that the artist should be able to make that decision—not have some pirating little scrote take the decision away from them.

DK

Rob Havard said...

Apologies but this is bollocks.

It also assumes that there is only one way of making a living from music - excluding song writing, performing/concerts, mechandice etc.

EXACTLY the same case could be made for print journalism. It is still Bollocks. Are you going to copyright all the ideas you put on this blog?

Also I must say that all this free information on the web through blogs etc has really reduced the quality of comment and journalism hasn't it? There are far less people willing to write and comment now it is all free to all - isn't it? Morons.

I'm astonished that you can't see the parralels.

Innovation and capitalism tears down barriers to entry in the longterm. It tears down whole business models and even industries by bringing costs down and as it has torn down the print media Iron gates blocking the entry path for the future so it will do the same in music and the arts.

Even so - still the biggest flaw in your argument is that you continue to argue rom the point of Utility (can I make a living) and not from the point of Liberty.

Devil's Kitchen said...

Rob,

"Are you going to copyright all the ideas you put on this blog?"

The ideas on this blog are not original, so no. Under current laws, the way in which those ideas are express, i.e. my writing, is already copyright.

But this blog doesn't make enough money for me to live—it barely makes enough to buy a few beers every month.

"It also assumes that there is only one way of making a living from music - excluding song writing, performing/concerts, mechandice etc."

What if I don't want to tour, or whore out crap t-shirts? You'd happily take that freedom away from me, would you?

"Even so - still the biggest flaw in your argument is that you continue to argue rom the point of Utility (can I make a living) and not from the point of Liberty."

Fuck this: I am sick and tired of idiots like you turning up and telling me that you have more right to my creations than I do—and then adding insult to injury by telling me that I am decreasing your liberty.

DK

Anonymous said...

Oh please you idiot Rob. It does not assume anything of the sort. Nobody is advocating a system where you cannot give your work away for free if you wish. If DK wanted to "copyright" (not a verb, but you used it as one) all the ideas on this blog he should be able to do so.

Similarly if the goal of a music artist is to make money, and he has predicted that the way to make the most money is to sell CDs and restrict people from copying them, then why should he not be free to do that? If he thinks he would make more money by letting people share his work and rely on donations, then he should be free to do that as well.

In practice an artist may be restricted to choosing between various record companies who all force him to do the same thing, but that is a different matter.

Paul Lockett said...

DK: The non-existence of intellectual property demands the existence of copyright.

No, it doesn't. If there is no intellectual property, then there is no intellectual property. That's all there is to it. You might argue that, if there is no such thing as morally justifiable intellectual property, then we should have copyright for the utilitarian benefits it brings, but that is not the same as saying it is demanded.

And lo and behold, we have just invented ‘copyright’

No, we've shown how two people can enter into a contract. Copyright applies to everybody, not just to those who are party to the transaction, so it is demonstably not the same.

I find it bizarre that the people who argue that copyright is not a state-granted privilege and could easily be replicated by contract are often the most strongly opposed to abolishing copyright.

What if I don't want to tour, or whore out crap t-shirts? You'd happily take that freedom away from me, would you

It's not freedom, it's licence. It's the state giving you a set of privileges which enable you to extract revenue from other people. If I were a busker, I might like it if the state saved me the perceived indignity of asking people to throw coins in my hat by charging a toll on the street I'm busking on and giving me the revenue. That doesn't mean I'm entitled to have that ability, or that the state is restricting my freedom by not giving it to me.

Fuck this: I am sick and tired of idiots like you turning up and telling me that you have more right to my creations than I do—and then adding insult to injury by telling me that I am decreasing your liberty.

When has anybody said that they have more right to them than you do? That's a dreadful straw man.

If you want to keep your "creations" to yourself, then the answer's simple - keep them to yourself. Nobody forces you to make them available to other people. And yes, if you try to restrict my peaceful honest use of my property, then you are seeking to decrease my liberty.

Devil's Kitchen said...

Paul,

"And yes, if you try to restrict my peaceful honest use of my property, then you are seeking to decrease my liberty."

And so we come back to the issue of copyright as contract between two parties.

1) You buy a CD and enter into a contract not to copy and redistribute it.

2) You break that contract and copy and distribute it anyway.

3) The third party has no contract with the CD maker.

That doesn't alter the fact that you broke contract by copying it.

And yes, the contract restricts your use of your property—but you entered into that contract voluntarily. No one forced you to do so.

If you to break that contract, the CD maker should be able to sue you—in a civil court—for breach of contract.

I still don't quite see what your issue with this is: yes, your freedom has been restricted but you knew that was the case when you bought the CD.

DK

Wearysider said...

“It's based on the many millions members of Pirate Bay, Napster, etc. when they were at their height.”

Yes and the music industry collapsed didn’t it? Just like it did with the advent of twin tape decks and the recordable cassette before that, except it continued to make profit just not as big a profit as they wanted.

“Don't be naive. Of course some go bust.
Those companies that have survived so far have other revenue streams, usually venture capital. Others Open Source their code but hold back crucial elements that require you to buy licenses, e.g. SugarCRM. Others work on selling support of one sort or another.”

Of course some go bust, the shit ones and those who over exert their means. But selling tickets to tours and merchandise is irrelevant according to you (i.e. other revenue streams), the world has moved on, if the industry wants to stick to the out moded model it’s fleeced for decades then it’s in for a rude awakening it has been butt raped by technological advancement, whether me or you agree or not is irrelevant the fact remains the internet and file sharing is here the industry has a choice adapt or play King Cnut and drown through their own inflexibility.

“That is irrelevant. When you pay for a CD you are buying a CD; when you pay for a gig ticket, you are buying a place at that gig; when you buy a t-shirt (or other piece of merchandise), you are buying a t-shirt.

You really cannot download the music for free and comfort yourself with the notion that you have paid for it really, because you are going to pay for a gig ticket.”

Who’s trying to comfort themselves? I’m stating matter of fact, record companies still make a killing they just don’t make as much as THEY feel they should be making based on the misguided assumption that 1 download = 1 missed sale which you feel is naïve of me of course but I maintain is complete and utter bullshit to over play their victim status no different to claiming you have whiplash from a minor accident to get more compensation.

“Many people do have this attitude, which is why gigs are so fucking expensive now.”

Nothing at all to do with the health and safety culture and trip or fall culture we live in where tour operators have to hire more of everything and make everything window licker proof.

“That isn't at issue. The issue is where people feel that the artist isn't shit and, instead of buying the music, they download it for nothing.”

Or download it liked it and go out and buy their back catalogue of CDs and go to see them on tour. I agree there will be a black market element of individuals who won’t buy at all and will only download, a personal assumption here, these are the same people who wouldn’t buy it even without the internet and would have recorded their ‘tunes’ from the radio on a Sunday night as they have less disposable income and wear pyjamas to go shopping in with their 3 illegitimate sprogs.
I recall reading about some study which suggested people who download music are something like ten times more likely to buy music, hell if I know the accuracy of this study (I’d link to if I could be arsed, but I’m not the one on a rant ;) ).

"Tough. The artist voluntarily signed a contract with the music company; the buyer of the CD or download also did the buying voluntarily.”

I concede this to an extent.

“And you call me naive?”

I’m afraid if you believe every download is a lost sale then yes.

Paul Lockett said...

DK: And so we come back to the issue of copyright as contract between two parties ... The third party has no contract with the CD maker ...

Which shows, quite conclusively, that copyright and contract are not interchangeable. I've no particular problem with the idea of an initial contract between buyer and seller, but as soon as you talk about copyright being binding on the third party, you're talking about something which is not equivalent to contract.

...And yes, the contract restricts your use of your property—but you entered into that contract voluntarily. No one forced you to do so.

Not if I'm the third party. I've never questioned the fact that a contract may exist between buyer and seller; that's just a diversion from the genuine issue, which is that if I, as a third party, record a song from the radio, or acquire it from somebody other the original seller, there clearly is no contract, so anything which binds me as a third party is in addition to contract law.

Devil's Kitchen said...

Wearysider,

"I’m afraid if you believe every download is a lost sale then yes."

But, as I stated before, I don't.

"... as soon as you talk about copyright being binding on the third party, you're talking about something which is not equivalent to contract."

I see your point, but I don't think that I ever did talk about that. I did say that the third party has no right to that property since it was acquired through a breach of contract: in my view, it's effectively equivalent to the handling of stolen goods.

DK

Paul Lockett said...

DK: "I did say that the third party has no right to that property since it was acquired through a breach of contract: in my view, it's effectively equivalent to the handling of stolen goods."

Well, that isn't how contract law generally works, so you're talking about copyright and contract being equivalent on the basis of contract law being significantly changed.

In any case, I don't think the argument you put forward holds up. Take the example I gave of copying a song from the radio, then I don't see how you can argue that there is a breach of contract. The radio station has the legal right to broadcast the song.

Frederick Davies said...

"But wait! There may be another way. Let us say that I agree to sell a copy of my CD to Buyer #1 as long as he agrees not to make the material on it freely available for x number of years, x being the time during which I reasonably predict demand for my music CD to exist."

Then they are NOT agreeing to a sale; if full Property Rights (including the right to make copies) is not transfered, then it is not a sale.
That is the problem with your argument: here we have a conflict between the right of Free Contract (any contract willingly agreed should be legally enforceable), and Property Rights (if I bought it, it is mine and I will do whatever I want with it). This is a conundrum for traditional Libertarians like you: Free Contract and Property Rights are not supposed to clash like that.
The Pirate Party seem to consider Private Property superior to Free Contract, and the fact that you have to resort to utilitarian arguments to support it (Copyright encourages innovation) shows you do not have a true argument. As for the "Copyright encourages innovation" meme, you might want to read "Against intellectual monopoly" by Michele Boldrin and David Levine, before pushing it too much.

Devil's Kitchen said...

"That is the problem with your argument: here we have a conflict between the right of Free Contract (any contract willingly agreed should be legally enforceable), and Property Rights (if I bought it, it is mine and I will do whatever I want with it). This is a conundrum for traditional Libertarians like you: Free Contract and Property Rights are not supposed to clash like that."

Everything that you buy has a Bill of Sale applied to it: you can see the Terms and Conditions on demand at any shop.

In this case, you have an explicit Bill of Sale applied to an object which restricts, in law, what you may do with that object.

There's no clash here: there is simply a different contract to that which you normally assume.

DK

bella gerens said...

For all these people accusing me of various naive assumptions, I respond as follows.

First, I deliberately excluded record companies, gigs, merchandise, etc. in my thought experiment. I began with the premise that I wrote, performed, and paid for my home-made album myself, and this was the extent of my investment. Gigs, merchandise, etc. are not relevant.

Second, I worked on the cynical, but absolutely not naive, belief that if it is possible for people to distribute my product for free, some will do so. Naturally, as a businessperson, I wish to minimise the incidence of this, preferably to zero. This is not naivety. What is naive is for me to believe that there will be people who, although they could get my album for free, will choose to pay for it instead. I'm sure many people are indeed like this, but to rely on everyone's being like this is unsound business practice.

So what I end up with is the perfectly reasonable prediction that, if able, some people will distribute my stuff for free, and some people will acquire it for free. Because I am a greedy bastard, I don't want to quibble about potential lost earnings or potential gains from free publicity. I want to reduce some to zero.

Third, for a home-made album with no marketing or publicity (you'll notice these are nowhere mentioned in the thought experiment), 337 copies sold is a bit optimistic, even if it is the greatest music on earth, because word of mouth between friends and the friends of friends, etc. can only get one so far. If my completely non-marketed, non-publicised album can sell 337 copies, I'll be happy.

Fourth, I'm aware that whatever contract I and my customers agree about not reproducing my work for x time is not binding on third parties. If my customer's CD of my music is stolen, well, that's too bad for me. Hopefully the thief can be caught and made to compensate us both.

If my customer breaks the contract, however, this is actionable. It can be determined in court how many free copies my customer made or distributed, and I can present to the jury my estimate of how much potential earnings I have lost as a result. Obviously it won't be 100%, because not all of the people who got free copies off my customer would have bought it in an alternate reality. If the jury thinks my estimate is, on balance of probability, fair, they can award me those damages. If the jury thinks my estimate is unfair, they can choose not to. In fact, the jury can return a 'guilty' verdict without awarding me any damages at all except my court costs. This is all just as it should be. So quibbling about the amount of potential earnings lost, which is a completely subjective estimate, is irrelevant. It is not pertinent to the law whether this amount can be determined exactly; the law comes into force if I can convince a jury that this amount is greater than zero. If I can't convince the jury of that, too bad for me.

This is what court is for: to judge whether the contract has been broken, and at what cost. If the law required me to prove all of that before taking it to court, I wouldn't need the court at all.

RAB said...

I'm not going to get into the argy bargy too much here DK, but this is an interesting article (trifle long but worth it).
http://www.theatlantic.com/doc/201003/grateful-dead-archives

The Dead gave away a lot of their music free, plugging in to the mixing desk with your Tape Machine. These got passed around and encouraged some to go buy better copies of the music, and also to go to the gigs.

bella gerens said...

Then they are NOT agreeing to a sale; if full Property Rights (including the right to make copies) is not transfered, then it is not a sale.

This is a silly argument. I own these CDs; unless you agree to my contract, I won't let sell you one in exchange for money, and they won't even remotely resemble anything that can be considered 'your property.'

I have, however, agreed in the contract to compensate you for restricting your use of the property by offering it to you at a reduced price. It is up to you to judge whether the money thereby saved is sufficient compensation for the restrictions I have asked for. If I knock a marginal amount off, say £5, perhaps this is not enough for you, and you can choose not to buy. But if I tell you that you may have the CD unrestricted for £3370, or restricted for £10, you might think that a pretty decent trade-off.

In either case, you don't have to like the contract, and you can carry on believing I have no right to require that of you. But then I am perfectly within my rights not to sell you that property.

Anonymous said...

DK: at the level at which most (part-time) bands play, they will make to money on playing gigs—in fact, gigs will probably cost them money. This is especially true in London, where promoters and venues have the upper hand because of the number of bands around.

So, although there are already so many bands that they can't make money by performing, the argument from utility presupposes that it would be a good thing to have even more bands?

Devil's Kitchen said...

Anon,

"So, although there are already so many bands that they can't make money by performing, the argument from utility presupposes that it would be a good thing to have even more bands?"

No, only that those who confidently bollocks on about bands making oodles of cash from gigs and merchandising are talking out of their fucking arses.

DK

feutche.com said...

wait, it's either a property or not.
if it is, then your customer can sell his property to somebody else, without that condition.

http://mises.org/journals/jls/15_2/15_2_1.pdf

Anonymous said...

What an intriguing debate. But must you guys always insult each other and generally piss each other off?

Wearysider said...

“For all these people accusing me of various naive assumptions, I respond as follows.

First, I deliberately excluded record companies, gigs, merchandise, etc. in my thought experiment. I began with the premise that I wrote, performed, and paid for my home-made album myself, and this was the extent of my investment. Gigs, merchandise, etc. are not relevant.”


The accusation of ‘naïve assumptions’ would be me, the reason I found the original post to be naïve is it grotesquely simplified the situation artists find themselves in, thank you for now clarifying why you deliberately left out certain arguments but at the time of posting I nor anyone else was aware of this so replied based on what was in front of us.
Personally I feel it is not so simple to divorce record companies, gigs and merchandise from the artists product, so I do find it relevant, if an artist sits back and expects the money to simply flow in after they have recorded their stuff without doing jack shit they can expect to have thrown their money to the wind frankly and don’t deserve success.

“Second, I worked on the cynical, but absolutely not naive, belief that if it is possible for people to distribute my product for free, some will do so. Naturally, as a businessperson, I wish to minimise the incidence of this, preferably to zero. This is not naivety. What is naive is for me to believe that there will be people who, although they could get my album for free, will choose to pay for it instead. I'm sure many people are indeed like this, but to rely on everyone's being like this is unsound business practice.”

This is what I earlier described as King Cnut, absolute prevention of piracy is impossible so the idea of wishing for zero piracy isn’t viable if your product is sought after, what I argued is assuming the old model can carry on forever isn’t going to happen.
This ignores the increase in potential audience that comes with wider spread distribution of your work, you’re right not everyone will pay but I have more faith in human nature to think if someone likes what you do they will pay you for it even if they can get it for free (I accept maybe I’m being naïve to an extent here but not without reason, see closing point), sure plenty wont but would they have ever bought your product in the 1st place? Unlikely imho.

“Third, for a home-made album with no marketing or publicity (you'll notice these are nowhere mentioned in the thought experiment), 337 copies sold is a bit optimistic, even if it is the greatest music on earth, because word of mouth between friends and the friends of friends, etc. can only get one so far. If my completely non-marketed, non-publicised album can sell 337 copies, I'll be happy.”

Then if you are not marketing or publicising the chances of your product making its way onto P2P networks or otherwise is slim to zero, before anyone downloads your work they have to know about it and want it surely?
Really I find the analogy of a home made friends and friends of friends album isn’t relevant to the whole debate as piracy of it isn’t a real concern, for what it’s worth many bands like Metallica gave away their tapes for free when they were starting out, it obviously didn’t hurt them.

Wearysider said...

continued because I ran out of characters in above post..

To be clear, I'm not a Pirate Party supporter, I tried to make that clear in my 1st post but I do feel the existing copyright laws and the way in which the record industry operates is long overdue a major overhaul.
Sitting back and expecting the money to roll in while hiding behind a mountain of laws which effectively mean we buy a vague amending contract to listen to the music, a contract which has changed over time, once we were entitled to record across media, CD or cassette to MP3 for our own use, now cross media backing up is technically illegal under the EU copyright directive even if our government has graciously advised it to be none prosecutable.

Anonymous said...

as someone who is involved in flogging my brother's albums, I can tell you that 337 is pretty darn optimistic—even when you have a loyal following after more than a decade playing gigsNot sure that copyright is going to make much difference one way or the other to a band like that? Seems like a straw man to me. Copyright does become an issue to the kind of band which sells a lot of recorded music, and they will generally be able to make money from tours, merchandise and commissions.

countdruncula said...

DK,
It's late and I'm going back to bed so I will offer up no opinions at this time. I will, however, recommend that you read Free Culture by Lawrence Lessig, Harvard law professor and founding board member of the Creative Commons.

Frederick Davies said...

"Everything that you buy has a Bill of Sale applied to it: you can see the Terms and Conditions on demand at any shop.
In this case, you have an explicit Bill of Sale applied to an object which restricts, in law, what you may do with that object.
There's no clash here: there is simply a different contract to that which you normally assume."

But that would imply that there is no such thing as Property Rights: only Contract Rights. If I can impose through monopoly power whatever terms I see fit onto your "Property Rights" over what you buy, those are not really Rights anymore. Rights have to be indivisible to be able to survive over a period of time. The fiction that Property Rights are not a single indivisible Right, but a bundle of rights which can be separated from one another without affecting the supposed title of Property is what allows the State to regulate the uses a piece of land (in the USA, for example) into nothingness without having to compensate the "owner" for his loss.

Anonymous said...

Interesting post - mostly because it shows how simplistic your thinking really is.
The argument over copyright doesn't work.

You have created a record, and you need to sell 337 of them to make money. Why is that any different to any other form of manufacturing?

Reaching a break even point is a risk every business takes!

Assuming that some of your customers are going to like your music, some might copy it, but the people who are not willing to pay for it are not your customers anyway - they are the same people who buy fake Rolex watches.

What the lack of copyright control has done with your music is to make it more available to those customers willing to pay for it. You also need to remember that while the paying customers have not invested £££, they have invested £10 - and how likely are they to want to give something away that they paid money for?

Gobshite. said...

As there are not that many 'strong' albums, especially among the current bands, I would suggest a monthly fee to download whatever you want.

I also think that a tax on CD and DVD blanks would be a good idea.

If you link in with the amount of downloads on torrent sites (rather than try to shut them down), you could neatly divide up the tax among the artists, and greedy cunt record companies.

The 'record industry' has been beaten to death by MP3 players.

Devil's Kitchen said...

Gobshite.,

"I also think that a tax on CD and DVD blanks would be a good idea."

Canada does this and I think that it's an abysmal idea. Why should people who are not ripping music to CD have to pay a tax to compensate music companies for those who are?

None of what I have written is designed to help shore up the music business: if they cannot adapt, then they'll have to die.

DK

Tomrat said...

DK,

An interesting example of voluntarily removing copyright protection and actually going in the opposite direction:

http://en.wikipedia.org/wiki/Keith_Green#Recording

Yes he had an ulterior (divine?) motive, but that did not stop Keith Green leaving somewhat of a legacy after him.

In a manner Radiohead tried a similar thing with the release of their last album.

Ho hum.

Anonymous said...

that no one will value the artists work, how many pieces of freeware exist out there where the option exists to donate or buy a license do these companies go bankrupt? no that's because not everyone believes in something for nothing as your analysis would suggest.

Haven't you ever read the licenses that come with freeware? The whole reason freeware can be free is because the creator retains copyright. This allows them to get their own name out and to retain control of the product's name. A small developer will merely use it to boost his CV (and have a donation button) whereas a company could use it to get you locked into their product and then sell you extra features or "official" support.

I'm a BSD man myself, but even the chief freetard supports copyright: http://www.gnu.org/philosophy/pirate-party.html

neil craig said...

Anybody credibly promising 10% growth like China or even world average growth of 5% would win the election. All of them know that & know that such growth is possible (the average in the world manages it some of them are pretty dreadful). On the other hand it would mean a reduction in the groos of government & as you point out both parties are pretty much the same organisation & it is government.

Irdial said...

And lo and behold, we have just invented ‘copyright’

I agree with the the poster above, you have not invented copyright; what you have done is entered into a private contract with whoever buys your CD.

Copyright is something quite different to a private contract; when people buy your CD under this scenario, they still have the right to copy the CD, since it is their property - they simply (and most importantly) voluntarily, agree not to exercise that right and any other property rights you choose to include in the contract in that particular instance.

The Copyright laws are non voluntary coercive government statues that interfere with your right to do what you want with your own property. That is very different to entering into a voluntary contract with the manufacturer of a CD. The former is immoral the latter is not.

If the contract is written carefully, third party sales could be forbidden to prevent the problem of unbound buyers getting a hold of the CD. The forbidding of airplay or public performance could also be written in to stop leaks. As for the disc being stolen, this is a force majure event, and a risk of doing business.

Anyone wanting to understand the true nature of Copyright law and how corrosive and destructive it is to everyone's rights, health and prosperity should read 'Against Intellectual Monopoly'. Its a fascinating and informative read, providing some solutions to this problem, including one that applies to this CD/music problem.

Dave said...

I'm on your side DK. Most of the posters here are thieving shits who want to steal my hard work.
I've got two albums sitting on my computer mixed and ready for manufacture.
It's not worth me spending my money on nice artwork and getting them manufactured because if they're any good people will buy one and rip it, or ignore it. Either way I get left with stock I can't sell.
I seriously believe that the only way forward is for good live bands to refuse to release records. If you want to experience them, you have to see them live.