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[d@DCC] Michael Geist's Toronto Star article on compulsory licensing of P2Ps

From: Neil Leyton <leyton _-at-_ fadingwaysmusic.com>
To: General Discussion <discuss (at) digital-copyright.ca>, mgeist (at) uottawa.ca, brayner (at) thestar.com
Date: Mon, 08 Mar 2004 16:27:08 -0500
References: <Pine.LNX.4.44.0403081413070.18587-100000@calcutta.flora.ca>

To: Michael Geist
CC: Toronto Star music writers, General Discussion Forum at Digital 
Copyright.ca

re: "Music licensing would be viable for all" Toronto Star Article by 
Michael Geist

Greetings Michael,

Please allow me to introduce myself. Cue the Rolling Stones "Sympathy 
for the Devil" please, as the perfect background to the discussion that 
may ensue.

I am the managing director of a small (thirty-five titles distributed in 
fifteen countries) indie record label based out of Toronto. Having just 
been through CMW, where the issues of downloading were a fairly hot 
topic, I feel the need to comment on your article, and this issue in 
general, since I feel I represent one of the most important voices that 
is consistently shut out of the media discussion on the topic: that of 
the artists, that is, creators of intellectual artistic property.

I realize that your article, written from the legal stand-point, deals 
with the issue from a legal stand-point discussing the legalities of the 
matter and encompassing the problems and preoccupations of the IP 
owners, meaning the major music publishers.

However, I feel it important to point out that these laws that are being 
passed in several countries such as the DMCA of 1998 cannot continue to 
pretend to speak for the entire music creator communities the way that 
the RIAA/CRIA would like to convince the public. For every major label 
release there are hundreds more independent records made, bought and 
sold that have increasingly been marginalized by the mainstream music 
industry. Our artists sell more records off-stage in Canada than they do 
in stores; who accounts for those sales not Soundscanned? Who gives 
these artists a voice in the political and legal lobbying for these 
issues? Certainly not CRIA. Not even CIRPA, who from what I have 
witnessed act like a mini-CRIA when it comes to the issue of downloading.

You rightly declared in your article that "For the recording industry, 
the equation is simple  file sharing is up and sales are down." But 
this is true only if you swallow the RIAA's statistical declarations, 
which as Bob Lefsetz pointed out on Saturday at the CMW conference, are 
as self-contradictory as they are completely fabricated. First of all, 
as I've pointed out, they are statistics based strongly on Soundscan, 
largely ignoring independent music sales; and in their analysis they 
also neglected to point out (as Bob Lefsetz asserted) that while Napster 
was around, sales were higher than they became later, when the majors 
shut down Napster. Lastly, there is absolutely no way to ascertain 
whether the people that are downloading music were ever going to 
purchase those records - downloading may hurt sales projections, but 
whether or not it hurts sales is a debatable and ultimately unprovable 
argument. So, to declare in your article that "peer-to-peer networks 
(are) tagged as the obvious culprit" is an irresponsible public 
propagation of an RIAA-induced myth.

The next point I'd like to address concerns the levy on recordable 
media. David Basskin, head of the CMRRA, proudly explained at CMW how 
complex the process of monetary distribution is - by way of excusing his 
agency, and Socan, as to how long it takes to get the funds out to the 
creators: it is based on radio play and sales.

Radio play and Soundscan sales, as I've said before, completely ignore 
the large percentage of music creators. It's like allowing Cadillac or 
Rolls Royce to speak for all car makers.

The recording industry's claim that "the compensation obtained under the 
private copying regime does not come close to covering the losses 
sustained by the industry", therefore, is a complete sham on two counts: 
A) Downloading and P2P networks have NOT created any loss for the 
independent labels; they are in fact great for business because the net 
allows more people to hear music that they would not otherwise know 
about. B) Their claim cannot be substantiated anyways, since the only 
provable loss of sales have been in their sales projections. A host of 
other factors, from the general state of the economy to the increasingly 
poor artistic quality of major-label releases, could just as easily be 
to blame for the majors' projections not being met.

Which leads me to another point - and I apologize if I am off-topic 
here. From our perspective as an independent label, the measures of 
"success" that the music industry adopted during the booming economy of 
the 1980's have revealed themselves to be a non-sustainable business 
model, mid-way through the 90s and in the new millennium. Due to 
over-inflated recording cost, promotional costs and the salaries of 
their large staff and grossly overpaid directors, the major-label 
business model increasingly depends on the public to buy records by the 
millions, placing the emphasis on the sales figures of the week of 
release - much like the film studios' focus on "opening weekend" gross. 
As a result, the major labels tend to focus on the "next big thing" 
rather than sustaining and developing career artists. It would be almost 
inconceivable for a major to sign a singer/songwriter like Elvis 
Costello in today's business environment, and as a result incredible 
talent falls by the wayside.

With the changed economy, and even with their major marketing campaigns, 
the major label releases often just don't live up to their sales 
projections, as you've pointed out in your article. So, instead of 
acknowledging that their business model requires certain ideological 
modifications, the industry has chosen to point the finger at the 
consumers, aiming to blame them for not buying a million records in the 
week-of-release the way they used to in the 80s. Comparatively, in the 
70s, when Pink Floyd put out a record, 50,000 sales in the first week of 
release was considered a success. The recording industry refuses to 
accept that times have changed, and with the arrival of the internet as 
a new technology for down-loading they have found the perfect scapegoat 
as to why their business model isn't doing as well as it used to.

I mention all this because it is of great importance for lawyers such as 
yourself to be aware of the complete picture concerning this issue. When 
you make the claim in your article that "The recording industry has made 
significant strides in recent months in offering new choices to 
consumers" what remains unspoken is that, with the legal assistance of 
their lawyers and lobbyists, the RIAA have in fact highjacked the 
concept of copyright to suit their own purposes - I call it cultural 
terrorism.

Copyright was originally meant to offer a fair protection of 14 years to 
an inventor or creator of a work. Furthermore, as it concerns music 
publishing, the concept of copyright was used by tin pan alley 
publishers and later, artists like the Rolling Stones and Led Zeppelin, 
as the legal foundation by which cultural commons songs as well as the 
IP of black artists were STOLEN from them. Does Chuck Berry get paid 
every time Keith Richards plays one of his guitar licks? Did Led 
Zeppelin ever really pay fair royalties on "Travellin' Riverside Blues" 
or the host of other blues songs they ripped off?

The point here is the exposition of the inherent hypocrisy of the RIAA's 
position. Music is culture. Culture is free - it is the zeitgeist of our 
existence. Hence, from where I'm standing, DOWNLOADING IS NOT THEFT. It 
is only theft because lawyers and lobbyists have wrongly made it so. 
Keith Richards wasn't wrong to play Chuck Berry licks, nor should he be 
paying for them - what he shouldn't have done is register them via his 
1960's publisher, Abcko, as being HIS. He did not author them.

Your suggestion of a "blanket licence for peer-to-peer users that would 
effectively legalize music file sharing" may seem like a good idea 
amidst the mainstream debate, but ultimately it adds insult to injury in 
the historical context of all that is wrong with the music industry. In 
a perfect world, the dinosaur that is the music industry should accept 
its unsustainable position, apologize for the lawsuits, and accept that 
consumers HAVE THE RIGHT to sample before they buy - that is the essence 
of P2P file-sharing. People that hear music they like will certainly go 
out and buy those records if and when they become fans of the music. 
Real music fans want to have records in their shelves, in their 
collections. The only exception is "fans" of disposable music, who are 
becoming increasingly aware that $20 isn't a fair deal for records that 
only contain one or two decent tracks.

You write, "To be both fair and effective, a blanket licence for 
non-commercial file sharing would need to provide full compensation to 
the recording industry for the losses it incurs due to the file sharing 
activity." I trust I've made my position clear, as the director of a 
growing indie label as well as an artist: To be fair and effective, file 
sharing must be free and legal. The recording industry I'm a part of 
does NOT suffer from file sharing activities.

To the majors I say: Sign better artists. I assure you your sales will 
increase with legal P2P. To radio I say: If you want to increase the 
amount of listeners, play a wider spectrum of music and move away from 
corporate payola and/or guidelines from parent companies like 
ClearChannel, who are admittedly in the business of selling advertising 
and not in the music business. To artists I say: embrace Creative 
Commons and denounce the CRIA stance - it does not speak for your interests.

And to the lawyers I say:

While the traditional model of legal ethics dating back to the 
institutionalization of law as a profession in the late nineteenth 
century dictates that lawyers have a professional responsibility of 
neutral "zealous advocacy", I would advance the notion, seconded by many 
law students in our country's law schools, that lawyers MUST move 
towards a more ethical, sometimes referred to as "contextual", mode of 
practice that would place what is morally correct and historically 
appropriate ahead of the interests of corporate paymasters like the 
major labels.

Speaking of students, your suggestion that undergraduate students be 
charged $8 a month for culture that should be free - as it has been 
historically via "fair-use" home-taping and sharing - is absolutely 
preposterous. Cut to the ridiculous: when will corporations start 
charging for the air we breathe? Coca-Cola Co. is already charging us 
for our tap water (Dasani). When will lawyers, being in such a prominent 
position of policy-making power in our society, begin standing up for 
what is right instead of what is profitable?

You write,
"Consumer demand for music online is clearly here to stay. What we need 
now is a solution that allows all participants in the process, including 
the record labels, creators, consumers, and ISPs to benefit." Did you 
really mean, ALL participants??

It's time we start listening to the voices and interests of the creators 
and the consumers, because, quite frankly, the record label's (majors 
that is, no one ever talks about the independents) constant PR spin on 
this matter is as substantiated as governor Bush's WMD Iraq claims.

Neil Leyton
www.fadingwaysmusic.com

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