Digital Media is NOT Stuff

02007-11-21 | Art, Copyright, Music, World | 19 comments

Amazon’s MP3 store rips off your fair use rights – Boing Boing
Amazon’s contract says you “may copy, store, transfer and burn the Digital Content” for personal use. But then it goes further and specifies restrictions, saying you “agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content.”
Oh, ffs. All we want to do is buy MP3s, like we used to buy CDs and records and tapes. Stuff we could make some claim to owning. You’d think that a group of people as property-obsessed as the recording industry would understand the desire to own one’s music collection and have all the rights to it that copyright normally confers on those who buy copyrighted works — like the right to sell, edit. adapt, loan, modify, etc. All the stuff the law give law-abiding customers who buy stuff.

Why s this so hard to understand? A digital file does not equal STUFF, you know, things you put in your bag or carry with you or place in a drawer. A song in mp3 form is not the same as a song on a CD and therefore the same rules cannot apply. When I sell or give away the CD I bought, I have given away my ONLY copy of the song – certainly true prior to the late nineties before anybody with a computer could burn a backup CD for themselves.

(When I think of how hard it was to buy a DAT recorder in the late Eighties, because the music business had convinced law-makers that DAT recorders were dangerous in that they could make perfect copies of music… There was even a tax on DAT recorders and on DAT-tapes that went to BMI and ASCAP to be dispensed to composers… and then came 2001 and Apple’s slogan “Rip, Mix and Burn” and that was that. Did nobody see that coming? Was a fight futile? Was it the tipping point?)

In a way the value of the piece of music had been transferred to the piece of plastic it came on. Selling the piece of plastic meant selling the music. But, when I sell or give away a copy of an mp3 file I bought, what would make me give up the copy on my HD, huh? An honor system? A kind of DRM? What?

All we want to do is buy MP3s, like we used to buy CDs and records and tapes. Stuff we could make some claim to owning.

Music is no longer STUFF, folks. Let’s get over that as soon as possible. What we have here is a new way of dealing with ideas. Those ideas are no longer put on a piece of plastic or vinyl or tape, married to something physical. They are no longer transferred to something tangible which can’t be copied. They have become zeros and ones. This is a HUGE change. What if you made wine for a living and suddenly the grapes you grew and with much expertise and care turned into wine… could be turned into zeros and ones and replicated like yoghurt. You see, yoghurt is a mix of bacteria and if you like a certain yoghurt’s taste you could easily add warm milk and make more! Let’s say people found a way to replicate wine like yoghurt? You buy a bottle of wine and turn it into 10, 50, 100 bottles of wine. And since bottles are easy to come by and paper-labels can be copied easily you can start giving away or selling this wine.

Actually, I believe that this WILL eventually happen to almost everything in our lives. What was once something you could store, put away, sell, loan, hang up, present… will all become something, hm, different, more intangible. Once again art is getting there first, presenting the problem we need to solve. Nobody has, in my opinion, found a decent solution yet. DRM is not a solution – at least not in the shape it has taken so far. Music wants to be free is bullshit, but music wants to be locked up is bullshit, too. Watch this TED talk by Professor Lawrence Lessig for some clues.

This is about money, and it is possible that the first person/company to figure out a fair and righteous way to sell music might become very rich, but it is also about CULTURE. How do we view artists, musicians? How do we view their work? What is ownership? How do we deal with the fact that it is no longer about the object (CD, Photograph, Wine-bottle, Book etc.) – but the content? I don’t know the answer, but I know this: let’s stop making stupid statements like this:

All we want to do is buy MP3s, like we used to buy CDs and records and tapes. Stuff we could make some claim to owning.

If musicians can’t go back to how it used to be ten years ago, then neither should the public. Moving forward is the only way.

19 Comments

  1. Vic2rh

    It’s interesting that the concept of intellectual property goes back 150 years (or more) and yet so many people are confused about what they actually “own” with regard to media. It seems that most people get that they can’t copy or re-sell a computer program (a stream of 1’s and 0’s stored on digital media) so why such a stretch to realize they can’t re-sell or copy music files (which is essentially a computer program)? Actually, I don’t think it’s that they don’t get it, but rather that they resent the possibility that technology (or someone watching) might get back the “upper hand” and stop the ease of copying we’ve come accustomed to.

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  2. steve

    Along these lines, the music industry needs to stop propagandizing it as STUFF too.

    Their claim that illegal downloading “is theft” is just plain wrong.

    THEFT is when you TAKE something of mine, and I DON’T HAVE IT ANYMORE. This is a CRIMINAL offense. When I TAKE an mp3, I am guilty of COPYRIGHT VIOLATION, because you STILL have it, but I have a COPY too. This is a CIVIL offense. There is a BIG difference, and unless and until the difference is recognized by BOTH sides, we aren’t going to get anywhere, because we’re talking past one another.

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  3. ottmar

    Steve: Musicians cannot possibly care whether their getting ripped off is a criminal offense or just a civil offense. They are just trying to figure out how this is supposed to work now. The sad fact is that apparently even digerati don’t understand the difference between stuff and bytes – as evidenced by the BoingBoing post.

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  4. steve

    Well, my point is that if the very industry that is ostensibly “supporting” them is confused, and the label trade group is confused, and the press is confused, then the public becomes confused, because they never get the complete, straight story, and before long they don’t know who to believe, and just do what they want…

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  5. ottmar

    Google these two words: rapidshare ottmar and if you have seen enough try bittorrent ottmar
    Back to your comment. You suggest that it is all just a PR problem, an education problem?

    Reply
  6. Rik

    Theft is not me taking something so you don’t have it anymore. It is taking something that does not belong to you and that deprives the rightful owner. In this case taking copies of music that deprives the musicians of their income from the sale of that music is theft. When people begin to see this then we may make some progress in this regard. Unfortunately, there is no answer yet as to how to prevent it. How can a selfish and lost human race come up with a righteous answer to this problem? We cannot. We are a mutated virus bent on killing our host and ourselves in the process, destroying and devaluing those things that make life so enjoyable. There is a cure. We have to allow ourselves to be changed from the inside out.

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  7. steve

    Ottmar: “Back to your comment. You suggest that it is all just a PR problem, an education problem?”

    I say that it’s a “perception problem.” I think the evidence is overwhelming in this regard, viz. the boIngboIng article. Since the language we use affects what we do, and how we think, and I think the evidence for this is pretty overwhelming as well, we need to have clear, precise discussions regarding what exactly is going on. I don’t claim that it will fix it overnight, but we better start with our language.

    Why is it that I, as a 46 year old physics educator (and former EE) view an mp3/AAC file completely differently than a person 20 years my junior? Why do I view the illegal downloading of such a file as completely WRONG, and that same person I mentioned thinks it’s absolutely fine?

    It’s perception, language, and … if you like, PR …

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  8. ~C4Chaos

    excellent post, Ottmar! i’m a supporter of Creative Commons and Lessig’s version of Free Culture so i understand where you’re coming from.

    “If musicians can’t go back to how it used to be ten years ago, then neither should the public. Moving forward is the only way.”

    unfortunately, there is no solution yet. moving forward and seeing what’s beyond the horizon is the saner thing to do (e.g. the hell with DRM :)). the Record Labels are, just naturally, fighting for their lives and their old business models, and copyright policies are lagging (because let’s face it, government policies are slow). at this point i think the innovation would come from “rogue” artists (and their techy friends) because they are not as bounded by old business models and lagging government policies. this is already happening with Ottmar’s attempt at distributing his music online, Radiohead’s experimental album download, Saul William’s Niggy Tardust, filmmakers distributing and promoting their films online via Youtube, to name a few.

    steve says: “Why is it that I, as a 46 year old physics educator (and former EE) view an mp3/AAC file completely differently than a person 20 years my junior? Why do I view the illegal downloading of such a file as completely WRONG, and that same person I mentioned thinks it’s absolutely fine?”

    generation gap? :) seriously, i think this is a major shift in morality that has been brought about by technology. the young generation of today grew up with the internet. copying “digital stuff” (music, games, videos, etc.) and sharing them with friends is just as natural as surfing the web. but i don’t think this shift in morality is recent. in fact, 20 years ago, i swap cassette tapes with my friends loaded with music recorded from, get this, radio broadcasts. most teenagers in my generation did that. now imagine the kids of today having access to tools wherein they can do this type of sharing with just a click of a mouse?

    my point is: we won’t get anywhere by penalizing everyone by “criminalizing” the sharing of information just because some hot shots out there are profiting from this sharing. the Record labels, policy makers, artists, and audience (i.e. consumers of media) need to adapt to these changes. Record labels need to be more creative with their fledgling business models, policy makers need to revise copyright laws (Creative Commons is a good start), artists need to seek new ways of expression in which their artworks *become more valuable the more they are distributed*, and audience need to become more vigilant with their actions while supporting their favorite artists. easier said than done of course, but those are the things that need to happen for us to move forward.

    my two cents.

    ~C

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  9. steve

    Rik: “Theft is not me taking something so you don’t have it anymore. It is taking something that does not belong to you and that deprives the rightful owner.”

    Yeah …deprivation of the rightful owner IS the rightful owner not owning it any more. IT’S GONE … physically removed from their access. Exactly what I said.

    Theft applies to physical things. This concept that got the whole thread started: “stuff.” I think we have already established that an mp3 is not “stuff.”

    Here is the definition from the legal dictionary: “the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker’s use (including potential sale).”

    Personal property: “movable assets (things, including animals) which are not real property, money, or investments. ”

    Logically then, illegal downloading (i.e., “unremunerated”) is a copyright violation, since it does not involve “personal property” but rather, “intellectual property.”

    Intellectual Property – Property that can be protected under federal law, including copyrightable works, ideas, discoveries, and inventions. Such property would include novels, sound recordings, a new type of mousetrap, or a cure for a disease.

    This is different, though no less egregious, IMO.

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  10. ottmar

    … without permission or consent and with the intent to convert it to the taker’s use

    That quote does NOT distinguish between stuff and bytes!!

    You point out that we make a distinction between physical and non-physical stuff. Should there be? Everything is energy anyway, so why treat the two differently?
    I think we have to think bigger. Eventually EVERYTHING might be a copyright violation as the line between physical and non-physical becomes eroded.
    I don’t have an answer, but it surely is a question we must collectively grapple with.

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  11. UK Gerry

    I still have my vinyl collection from the 70s / 80s.
    But I view it like a collection of antique books.
    It always was about the content for me!
    Music is so precious – I don’t like to see it de-valued in this way.

    How do we deal with the fact that it is no longer about the object?

    I think major artists realise this already – thats why gig tickets are so inflated. We’re paying for the experiece (the content) of ‘the show’. But perhaps we’re also paying for our ‘free’ album when we buy our tickets to the gig.

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  12. steve

    Steve: … without permission or consent and with the intent to convert it to the taker’s use

    Ottmar: “That quote does NOT distinguish between stuff and bytes!!”

    Sure it does. It refers to “Personal Property” which is defined two paragraphs later. It most definitely makes a distinction between stuff and bytes

    Ottmar: You point out that we make a distinction between physical and non-physical stuff. Should there be? Everything is energy anyway, so why treat the two differently?
    I think we have to think bigger. Eventually EVERYTHING might be a copyright violation as the line between physical and non-physical becomes eroded.
    I don’t have an answer, but it surely is a question we must collectively grapple with.

    OH, I don’t say its RIGHT. In fact I believe we have the entirely WRONG approach. I don’t know what the answer is either…but I do believe Lessig is on to something. No I don’t believe we are on the right track at all… all I am writing about is what currently exists: The parameters we have to deal with TODAY.

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  13. dave

    I know this probably sounds naive but people need to change. No matter what the law says there will always be some douche bag who thinks, “no one tells me what to do.” Personally, if an artist I like makes a request, like not to share music for free, I won’t out of respect for that artist and what is “right”. Robert Fripp requests that no photos, with or without flash, be taken at a concert so I don’t. For me it’s simple but I guess it’s not so simple for everyone.

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  14. Brian David

    Even though it seems like your orientation, Dave, towards honesty in matters such as these is simple, it’s really not. It’s a product of your development which is kind of tricky. You’re right, though, people do need to change. And you’re also right about the fact that there will always be “some douche bag” out there. That’s because adults begin as kids, and kids are not immediately smart or ethical. The most productive question, in this case, to ask, though, can’t be, ‘Do people need to change?’ because the answer is almost always yes. The productive question also probably isn’t, ‘How should people change?’ or ‘Is illegally copying and distributing music a copyright violation or theft?’.

    Personally I enjoy the question Ottmar and ~C4 are asking, which, to me, sounds like, ‘How can we, as a species, ready ourselves for the approaching moment when all that we consider valuable, from art to commodities to ideas to food, is projected into an intangible marketplace where sharing is as easy as purchasing, access is universal, and everything moves way, way faster?’

    I could be hearing the question wrong, or wording it wrong, as it’s still a tricky idea for me to handle, but in any case, it’s interesting to me.

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  15. Marsh

    Ottmar, I respect your opinion and find it (and the comments above) thought provoking. Thank you all.

    The BoingBoing post is (typically) incendiary, but the point stands that fair use is an important right that is worth protecting. What if I want to remix something for my personal use? What if I want to broadcast it to a class I’m teaching? What if I want to transmit it wirelessly to my stereo? What if I want to re-compress it because I have limited space? What if I want to edit a clip to notify me of new mail? It seems to me (IANAL) that Amazon is trying to eliminate these types of usage rights that used to belong to me.

    When companies don’t put the consumer something other than first, they do themselves a great disservice.

    Here’s my view on the morass in general… Technology has enabled the disruptive change that the music industry is currently undergoing. The record labels used to exist as an identifier (including promoter) of talent, as a concentrator of professionalism, and (most importantly) the manufacturer and distributor of the product. Each of those roles has been affected by technology. In many ways we don’t need them any more.

    Disruptive change is hard. Someone always gets hurt. Hopefully it won’t be the artists–but unfortunately while they do ultimately have great power, it is loosely distributed. That’s a market niche if I ever saw one (and, btw, how Electronic Arts began its ascent). For things to change for artists, they need viable alternatives to the old way.

    For years (at least in my opinion, and in this kind of issue perception correlates with reality) the recording industry has, in the eyes of consumers, used its market power to wring every bit of profit from its product. They managed to screw both the artist and the consumer at the same time, sowing the seeds that may ultimately topple their position. Napster marked the beginning of the uprising. Instead of embracing change, the labels predictably resisted. Tactics like suing their own customers didn’t help their public esteem. Adapt or die…

    Ok, I’m starting to wander, so I’ll wrap it up… The new world is still a ways off. Some of the solution will be certainly be cultural as you suggest, but I it may also depend on other parts, such as a good micro-payment solution. The question is how do we minimize the pain during the transition? Personally, I desperately want to support the artists I admire–I’m just not willing to maintain the status quo.

    So far every one is loosing.

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  16. ottmar

    So far every one is loosing.

    How do the file-sharers, with their free Blogger accounts and free rapidshare accounts lose? How do the russian mp3 stores (allmusic, mp3fiesta etc) lose?

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  17. Marsh

    @ottmar: karmically? (probably an unsatisfying answer, sorry) Free-riding is neither sustainable nor responsible.

    I agree with Steve above when he took issue with it being called “stealing,” as that to me implies that it no longer belongs to the original owner. It is, however, “taking”, which is ethically wrong. Maybe the future is reputation based? John Perry Barlow has written at length about how the Grateful Dead encouraged sharing, established a reputation, and made money on tour. But that doesn’t work for everyone. I’m also not saying that’s the way that it should be, rather how it might be, in hopes that we’re all exploring this together.

    Music (and performance) is information. I produce information every day, some of which other people consume (and hopefully enjoy). Except for what I create for work, I don’t get paid for the rest. I’m giving it away. Perhaps it establishes my reputation??? I certainly value the posts and cultural contributions you make on your blog–advertising can monetize that, but it’s the only tool we have (and a poor one at that).

    In this attention-driven life where time is rare and valuable, we choose to contribute in different ways. Today we expect to be compensated for those contributions in certain ways, and maybe the free market does a decent enough job of facilitating progress. Or maybe in the future transactions are less about micro-payments and more about reputation? I wonder.

    Reply
  18. yumiko

    What is the difference between criminal law and civil law?
    Civil law suits are private suits between two or more citizens. Civil law is the area of law by which private individuals resolve their differences with the help of the civil courts. Criminal law involves an action initiated by the federal government or a state against a citizen or a business. The criminal laws of the federal government and all individual states are codified into statutes. When an individual allegedly violates a law, as listed in the statutes, then the federal government or a state can prosecute the individual. The remedies available in civil courts are generally limited to money damages. The remedies in criminal court may involve a money fine and/or a jail or prison sentence.

    Can some activities be both a criminal offense and a civil offense?
    Yes. For example, if a person deces to walk up and hit another person and causes injuries to that person, the person initiating the contact may be found guilty of assault in a criminal court and liable for battery in a civil court.

    The above is from a criminal defense attorney website.

    The below is from the feds:

    http://www.ojp.usdoj.gov/bjs/abstract/ipt02.htm : “Criminal intellectual property theft offenses include copyright and trademark infringement and theft of trade secrets. Civil intellectual property suits include copyright, trademark, and patent infringement.”

    A lot of good opinions here. Art falls in such a different category, doesn’t it? Already so few are able to earn a living this way. The business of art is such a glaring contrast to the effort of creating art.

    Reply

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