There has been a tremendous amount of debate following the Tennenbaum trial, most of around the perceived severity of the damages awarded by the jury. Many believed that the music industry was unfairly punishing Joel for what many saw as a minor offense, he shared a couple dozen songs on the Internet. What was the big deal? Everybody does it, it’s not like he did it for profit. He was just sharing some tunes with ‘friends’. The jury saw it differently and meted out harsh justice. The U.S. Justice Dept. last week upheld the constitutionality of the damages.
An interesting blog discussion took place over the past week between Bill Paltry, Google’s Senior Copyright Counsel, and Ben Shaffner, a Former Fox Entertainment litigation attorney. They had decidedly different takes on the outcome and its societal implications. On one side, Paltry opined, “The [music] industry’s failure to offer any alternative after Napster isn’t just a small oversight; …that failure is directly responsible for the highly negative attitude many people have toward the industry. The failure of the industry to provide a way for people to access legitimate product led consumers both to unauthorized product and to rightly conclude that copyright was the primary weapon being used to thwart consumers’ desires.”
His argument is, in effect, that consumers are justified in taking the music they want because it is not offered to them in exactly the business model under which they would be willing to pay. Mr. Paltry puts the entire onus on the music industry, holding the music fans blameless for their actions. “It wasn’t my fault, the labels made me do it.”
Mr. Sheffner sees it a bit differently, “Music is about fun, escapism, pleasure. The fact that music is also a business, populated with accountants, lawyers, enforcers, and other not-so-fun people, is quite jarring. It’s natural that people react negatively when confronted with the harsh reality that it’s about more than “the music” — it’s about making a buck.”
He goes on to highlight the differences in consumer perception of the value of software vs. music, “My hypothesis is that people have no trouble accepting that software is a serious business, and that owners of software copyrights, who spend millions on their programs, have every right to stop people from copying them for free. By contrast, people will always think of music as an unserious diversion, and have a much harder time acknowledging that it, just like the software industry, is a serious business, with shareholders to satisfy and developers of popular products who need to get paid.”
Paltry’s most unsupportable example is a quote from Bono, “[the] lead singer of U2, also debunked the claim that piracy was the cause of the record industry’s ills: “Don’t believe those people. Crap music is hurting music. Give people what they want when they want it.” I would respectfully submit to Mr. Paltry that the people aren’t downloading crap music; they are downloading the good stuff! Sheffner states, “when people commit copyright infringement, they may think they’re causing no harm — but they are. They’re undermining a system that enables those big, bad companies that everyone loves to hate, to finance the movies and albums that we all love.”
And there is the heart of the problem. Music fans have been conditioned to believe that all the value in the music lies in its physicality; the packaging, the CD and the despised jewel case. They ascribe minimal worth to the recording and the song, which is actually where the real value lies. They argue that the incremental cost of goods in the digital world is nearly zero, so the uncompensated “acquisition” through downloading is a victimless crime. This is quite far from the truth.
Using disdain for the music companies as a rationalization not compensating the artist is a fallow argument. There are myriad services that provide a revenue stream back to the people that make music, with a variety of consumer value propositions and artist compensation models, WE7, Spotify, Rhapsody, Napster, iMeem, MySpace and iTunes, just to name a few.
There has been, however, a movement in the music business to throw in the towel, to value music at zero & to use it purely as marketing tool to sell merchandise and concert tickets, maybe promote a consumer product while you’re at it. I, for one, am sad to see that happen. Unfortunately, it seems to have an almost unstoppable momentum.
I, for one, believe there is a real future for music as commercially sustainable art form. I keep hoping that Debra Spar was right when she wrote in her book, Ruling The Waves, that “Cyberspace is indeed a brave new world, but it’s not the only new world. There have been other moments in time that undoubtedly felt like the present era, other moments when technology raced faster than governments and called forth whole new markets and social structures…Governments provide the property rights that entrepreneurs eventually want, the legal stability that commerce craves, and the stability that society demands. For in the end, even pirates and pioneers want order.”