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There's a common idea in our legalistic society -- if the law provides for it, it's virtuous to do it.
And furthermore, any attempt to go back is just wrong. So a "natural law" gets enacted rectroactively, and we get a new Eternal Value to embrace.
Which is killing our ability to function in society without lawyering.
Since we have a statutory system for intellectual property, there's a financial incentive to persuade people that they have a right to something that, after all, was only granted by a specialized law. So instead of the right being, "You, the Creator, have the right to profit from your creation," it becomes, "You, the Creator, have the right to coin legal tender through the agency of your Creation." And that's extreeeeemly tricky.
The law currently states (if I'm current in my reading) that a song has a statutory mechanical royalty of 7.5 cents for the phonographic right and 7.5 cents for the copyright. $0.15 a song. The state says that your music is fungible (tradable) like currency, but only on the first transaction; the license itself is assumed to have value, so you can sell it, or surrender it under contract (which is the whole idea). Any and all duplication is declared to be a form of counterfeiting, which we now call piracy, although piracy has long been defined as a form of kidnap plus grand theft.
So the private individual now has the ability to act like a mini-government and enforce its pseudo-currency law, and call the state in as its enforcer. Since that requires an attorney, in practice, the individual artist can't usually do that.
The problem isn't with royalties as compensation. The problem is with the application of remedies for loss. The law gives the privilege to the artist, but the artist's remedies are not limited. Supposedly they are, but the legal concept of "counting" -- as in "1000 counts of larceny" -- has made that meaningless. It is now legally permissable in some cases and jurisdictions to use lethal force against a child clutching a copy of your record.
Yes, the real-life lawyers here will rightly try to take me to the mat on that assertion, but I am well aware that shoot-on-sight intruder defense laws are many and untested. And it's going to take a body.
Sound silly? Sure! But the process of "pushing the limits" is now a key business practice. When the RIAA acts to sue a learning-disabled 12-year-old child and her grandmother, breaks them in court, and humiliates the child in public, the limit has been pushed far beyond the fifteen-cent mechanical royalty!
It's not silly when you consider, with all the limits being tested by lawyers these days, that the simplest of acts are now felonies. Felonies! A company which owns a piece of intellectual property can call the cops in on an unlicensed user as if s/he was a thief, even without establishing motive, intent, capacity, and the traditional criteria required to prosecute a felony!
In fact, in order to keep one's intellectual property rights, one MUST make the effort to enforce them. You can figure out how THAT atrocity got written, can't you?
I know, the past few hundred words probably reads like something a psychotic would mutter when the meds wore off (and the next few hundred will, too), but that's one of the reasons why corporate law pays so well. It has licensed a sector of the business community to exploit artists by contracting as their enforcement agent (and remember, enforcement is compulsory), using public money to prosecute the "neo-crime," and legally extort the consumer for reasons that may not even have existed at the time of the "crime"! So everybody pays.
As an artist, you're probably aware of how bleak the situation is for small bands, right? Even if you, eeyore, are really Bruce Springsteen posting under an alias, you're probably keenly aware of how much of your ass was owned for the first 5-7 years of your career. It's why Prince changed his name to TAFKAP, why George Michael didn't record for years, and why nearly all small bands who "get contracts" leave music with huge debts to the companies they worked for. The modern Contract, held to be sacred by most Americans AND most people in the world in general, is no longer a ceremonial agreement between peers, but the instrument of our modern bondage.
The more natural system would avoid all that. Artists would be entrepreneurs and work with businesses to develop opportunities for making money -- concerts, swag, tie-ins, broadcast performances, etc. Copyright would be a licensing vehicle for dealing with broadcasters and merchandisers, not a club to hit fans over the head with. Individuals would not have to pay for the music as an end-product (though many would); it's not even that profitable today compared to concert revenue. Businesses along the way would pay for the right to represent the artist in the market, and the artist would keep control of the revenue stream AND art. Since it is no longer necessary to pay over $500,000 for a (low-end) professional recording studio or $250 an hour for the services of one, the majors would be business agents which would have to compete for your business, not the "gorilla pimps" they are today.
A just-so fantasy, right? You've heard it before with Linux, and so on? Well, independent music is already profitable. But don't take my word for it -- take Ms. Righteous Babe herself, Ani DiFranco. "Radical" music, like the Dead Kennedys, has always depended on alternative business organizations. Trance, house, twee, emo, and other so-called fringe genres are likewise at work. And a lot of "vintage" acts are still making a good living while ignoring most or all of the rock-n-roll juggernaut -- The Association, The Turtles, and Shelby Flint, among others.
You have a right to make a living from music. If you're good, you have a right to get rich from your music. Depending on an archaic, extortionate system to enrich you isn't merely unethical, it has already become unprofitable. I personally just don't buy "major" music these days -- there is too much good free indy stuff available on-line, and when I really flip over a band, I send them ten or fifteen bucks for their CD. They won't get rich off of me, but when the new business community grows around them, when I have investment money, I will make sure part of it is invested in music and the other arts.
Plus ... today Music, tomorrow Cinema.
Y'know, I write pretty good songs, and while I look ridiculous in Spandex, the world is changing. There's no reason why an aging, 90% deaf punk rock dude like me can't have a big old stinkin' hit record. Sure, I'll copyright it, but you won't catch me shaking down my fans. Where there's a young, idealistic lawyer, there's a way to "enforce my rights" without preying on my fans.
The old system is dying, and there's no onus on anyone who gives it a push and a swift kick in the kidneys. Downloading will require some soul-searching for many people, and many people still won't do it, but so many tiny acts have been helped by downloading that I'm surprised it wasn't embraced from the day Shawn Fanning started writing code. (But that's another long post!)
The entertainment companies are working overtime to convince us that their profits are holy and sacred, but those profits have been made through a series of sanctified crimes. The "next phase" is to convince Lars and James and the boys to get on the bandwagon and turn Rock and Roll back into the active, vital grass-roots economy it should have been since 1953.
The only loss will be the guaranteed 15 cents per song per sucker; the gain will be a society that quickly becomes musically (and artistically) literate, appreciative, and creative. The artists and the suits won't be at war, but work together for maximum exposure at minimum cost and build a business that allows the musician to concentrate on the music for, hopefully, decades. And, oh yeah, there will be plenty of opportunity for wealth and fame -- and without the concentration of power sucking capital out of the hides of artists and their fans, prices will fall and the music will increase.
Sounds like rock-n-roll to me!
--bkl
And furthermore, if elected, I promise to ...
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