ABA Journal Highlights How The Music Industry Is Thriving And How Copyright Might Not Be That Important

from the wow dept

Michael Scott points us to one of the best summaries I've seen of the state of the music business today -- published in the ABA Journal. It's an incredibly balanced piece, that really does carefully present both sides of the story on a variety of issues, and presents actual evidence, which suggests the RIAA is blowing smoke on a lot of its claims. The piece kicks off by highlighting that the music industry appears to be thriving, and then noting that it's not the same as the recording industry, which has been struggling.

Much of the piece does present the RIAA's viewpoint on things, such as the idea that the legal strategy the labels have taken has been a "success." However, it follows it up by questioning what kind of success it has been when more people are file sharing and more services are available for those who want to file share. From there it segues into a discussion on "three strikes" and ACTA, which includes the jaw-dropping claim from an RIAA general counsel that "three strikes" was "never even put on the table." I've heard from numerous ISP folks who say that's not true at all. However, the article does a good job (gently) ripping apart the RIAA's claims, with evidence to the contrary, and does a beautiful job digging deep into ACTA to show how the text might not explicitly require three strikes, but is worded in such a way as to make it hard to qualify for safe harbors without implementing three strikes.

The latter part of the article then focuses on how the music industry really is booming, and how more people are making music, and there are lots of opportunities for musicians to do well these days, even without relying on copyright law. The arguments made (and the people and studies quoted) won't be new to regular Techdirt readers, but it really is a very strong piece, targeted at lawyers (many of whom may not have realized some of these details). For example:
If the ultimate goal is to promote the creation of new works, then perhaps it isn't really necessary to take stronger legal actions against illegal file-sharing because the evidence does not suggest that it is hindering the creation of new works by musicians
I certainly don't agree with everything in the article, and there are a few statements from the RIAA folks that could have been challenged more directly. But, on the whole, it's definitely one of the better articles I've seen looking at the music industry from the perspective of the legal profession that doesn't automatically drop into the "but we must protect copyrights!" argument from the outset.

Filed Under: business models, copyright, music, music industry

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  1. icon
    Karl (profile), 31 May 2010 @ 10:34pm

    Re: Copyright Law in the U.S.

    Incidentally, you didn't post huge parts of the article, which are very very important:
    The issue came to a head in the first major American copyright case - Wheaton v. Peters in 1834. (...) The Federal Supreme Court concluded (...) that copyright was a privilege, not a right. In its opinion, the case was about protection against monopoly and accepted the English precedent for the United States. In the process, however, the Court also rejected what later became known as the "moral" rights of authors.

    Emphasis mine.

    In fact, nearly every sentence in this article supports most of the stuff I and others have been saying - and that you have repeatedly denied. For example:

    [the Copyright Act of 1790] stands as the point of divorce between the perceived purposes (which became the protection of authors and publishers) and the methodology of the law (which remained to protect a movable-type based printing industry). The understood goal of the law was set adrift from the actual workings of the law. (...)

    Copyright to a work created by an employee or under commission belongs to the employer and neither economic nor moral rights attach to the actual author employee. (...)

    The extension of the renewal term of copyright... is unconstitutional because (1) it is motivated by a desire to establish perpetual copyright; (2) it provides nothing to authors (most of the authors being dead); (3) it does nothing to encourage the arts...; (4) its effect will be to discourage the arts by preventing the timely entrance of works into the public domain; and (5) it exceeds any reasonable interpretation of the constitutional requirement of "limited times." (...)

    Three words sum up the US rationale for granting copyright: progress, learning & knowledge. All three relate to the public domain and thereby to the third party in the copyright equation: the User. (...)

    Works are to become freely available to Users after the 'limited' time has passed, that is, they should enter the public domain. (...)

    In the simplest terms, this means: nonprofit copying is fair use.

    Seriously, do you actually read the articles you post?

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