I love music. I love all kinds of music... old music, new music, country music, jazz, and popular music. I care about the future of music and about the well being of those individuals who will be making it in the future. Music has been my passion my entire life and I have been fortunate to never have worked a "straight" job because of it. I am one lucky guy to be able to pursue what I love and to have gotten paid for it. Who could complain?
I've been doing this a long time and I'm confounded by the apathy of those who have participated in music-related successes and are now witnessing the demise of the entertainment business as it has existed since the beginning of recorded sound and moving pictures. So here I plan to ask some questions and my hope is offer a solution to the problem.
Tell me where, under today's conditions of de facto indentured servitude, will the new artists come from? If I were a young songwriter today, I would definitely be looking for another way to earn a living. The same would go for the young screenwriter or novelist. And what about the guy who only had one or two hit records 10 or 50 years ago? What happens to this guy who depends on that income to support his family if people are stealing those songs now? Tough luck, right? This is the thread of failure in front of all artists today. Art exclusively as a hobby -- that's the "new model" it seems. And to all you bloggers who have prophesized that this new way is going to somehow provide sustainable careers? Your prophecies did not and will never come true. If there is the occasional sparkle of success, it usually turns out to be nothing more than a novelty, not a new business model. We need to restore intellectual property to its rightful owners and reconstruct the business that has lost thousands and thousands of jobs plus billions of dollars in revenue.
Why is thievery allowed to continue on the Internet? And why do people think it's so impossible to correct? Right after radio was invented, they played music and sold advertising. Then it dawned on some: "Hey, they're playing our music, and they're selling advertising on our backs; we should get paid." So performing rights organizations like ASCAP and BMI were established with the express intention of protecting the intellectual property of artists who create it.
These, in essence, turned into collection agencies. They were able to collect money from radio stations, jukeboxes, movies, television which were all then fledgling delivery systems, and provided a livelihood for their members. They were able to keep track of what was being played and sold all over the world with pencil and paper. The government held these systems responsible for keeping track of their respective broadcast neighborhoods. They turned new delivery systems into multi-billion dollar businesses. That was progress.
But where are ASCAP and BMI today on the new delivery system -- the Internet? Where are the record companies? Where are the book publishers? Where are the unions to which we pay dues that are supposed to protect actors, writers, songwriters, and producers? And, most importantly, where's the government? Apparently everybody's too busy making excuses and shrugging their shoulders to realize their gravy train has gone up the waterspout.
Yes, there's a mechanism called SoundExchange that collects statutory royalties from satellite radio, Internet radio and other sources of streaming sound recordings but it's powerless to deal with those who have simply helped themselves to the intellectual property of others. It's a laudable effort but not the answer to this problem.
There is a law that exists to deal with copyright and the Internet that dates back to the good ol' days of 1990s: the Digital Millennium Copyright Act. It was supposed to bring U.S. copyright law into the digital age but it included something called "Safe Harbor Provisions" that basically says that each artist is responsible for retrieving his own merchandise and shutting down anyone stealing their property, which is kind of a joke. The law was written at a time when there were only a couple of kids running a handful of file trading sites in the world and was created to protect internet service providers from being sued if they facilitated the distribution of pirated material. This law now, unintentionally, allows big search engines -- like Google, Yahoo, Bing, etc. -- to be the equivalent of a department store as both provide and sell many services and products. Let's say that Ralph Lauren has his merchandise in Macy's. If someone shop lifts it out of the store, he's told, "Hey Ralph, your stuff's being stolen off of our shelves. You better go try to collect your money for it. It's not our problem or responsibility since all we do is make your stuff available to non-paying customers..." In other words, under the Safe Harbor Provisions, search engines behave like unpoliced department stores where anyone can steal whatever they want with no real threat of significant repercussions.
There's an added bonus, even better... on top of everything, they're collecting advertising money from Madison Avenue. So what's happening is your search engine leads you to an illegal downloading site where you can download -- you name the artist -- their entire catalog and, at the same time, see products and services offered for sale ranging from soft drinks to pornography and, adding insult to injury, that merchandise appears to be endorsed by the artist to whom it's attached. The artist, who is already being stolen from, now appears to be shilling for these products. The gangsters are making money, but the artist? Squat. (And I do mean gangsters.. this is not just a couple of kids file trading anymore, these are criminals, quite literally.)
To put it plainly, radio kept track of their playlists, record stores kept track of their sales, each movie theater counted tickets, each bookstore kept track of books sold, and why? Because the law required it and the manufacturers demanded it. And so the same should apply to search engines. They should be governed in the same manner but they're not. The Safe Harbor Provisions allow intellectual property to be stolen because the search engines are not held accountable. There's actually Safe Harbor litigation going on right now between Viacom and YouTube. YouTube is claiming that it had nothing to do with the posting of copyrighted material because Safe Harbor puts the burden on whoever did the posting. But all of that is really a hair-splitting, distraction in the grand theme of things.
Why is it that people feel that this problem is unconquerable? Often, when I talk about it, I just get an eye roll and the comment, "It's just gone too far now. This is just the way it is." No, this is not the way it has to be. This is the way we've allowed it to become, this faulty "new model." Recent history has shown that things can, in fact, change. When online gambling, once a huge and thriving underground business, was determined to be illegal sites went out of business almost overnight. Why? Because legal gaming enterprises and government regulation brought the hammer down where it hurt the most - credit card companies were told they could not be part of this dubious trade and they complied immediately. In the same way, if anti-piracy legislation were the order of the day servers, wherever they may be including the mythical "cloud," could and would be shut down thanks to technologies that have been developed and successfully employed during the fight against terrorism. The means to get this done actually exists; what we're lacking, at the moment, is the will to do it.
My answer, and it's really quite logical, is that current search engines and any that emerge in the future (the brazen thieves at Pirate Bay have smugly threatened to start their own search engine) need to be held responsible in the same fashion as any other business in this country. The law needs to be changed. ASCAP, BMI and intellectual property creators need to work to get rid of the antiquated Safe Harbor Provisions. We need to write a new law that should declare, something to the effect, that if you own and operate a search engine, you cannot allow criminal activity to take place in your virtual town.
The entertainment business has been criminally assaulted by wrong-headed thinking that says we need to keep up with the Internet. No, search engines need to abide and adhere to the laws that have governed this country for over 200 years. It's a moral imperative. Thou shalt not steal. Ring a bell? Calling it progress, ol' Hoss, don't make it right.