JEFF SHATTUCK MUSIC

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When you buy music, what exactly are you buying? And can it be stolen?

The other day I posted about Music Theft and the Culture of Free in which I lamented how it has become perfectly acceptable to get music without paying for it.

A commenter named Justin offered a critical comment that got me to rethink my own point of view, namely that file sharing is stealing. Justin thinks it’s nothing of the sort and brought up the scenario of a baker in which someone takes a loaf of bread from the baker without paying for it. To Justin, this is true theft because the baker no longer has possession of the loaf of bread and will never be able to recoup its cost to him. File sharing, on the other hand, is copying not stealing, because the file owner always retains possession of his file and can still earn money from it. It’s an interesting point, but I am positive that whoever wrote our copyright laws thought of this, because copyright law around music stipulates that if you buy a song you are only buying a limited set of rights to listen to the song, nothing more. In other words, you are not buying anything physical (save for some paper and plastic), you are only buying a license, which grants you limited rights. In my opinion, the originators of US copyright law foresaw the “baker” argument and wrote the law accordingly. Which is why just about every CD/record/cassette has the phrase on it “unauthorized copying is punishable by federal law”. In other words, if you download a song and then violate the rights to which you are bound, you’re breaking the law. Maybe the legal definition of stealing doesn’t fit, but so be it, that’s why we have copyright laws.

So, what should do? If everyone is trampling all over copyright law, should we engage in mass prosecutions, should we only go after the biggest offenders, should we do nothing and just let current law lapse into irrelevance, or should we re-write the the law? I honestly don’t know what the best path forward is, but I certainly believe that current law should be enforced because to not do it sets a dangerous precedent.

As for rewriting the law, that will take a long time, so near-term, if you’re an artist who thinks copyright law is outdated and not for you, you can publish your work under Creative Commons, which lets the copyright holder choose from four sets of rights instead of just one. Personally, I think Creative Common has potential, but it needs to be tested in courts more before I would sign up.

Another idea, and this is being done now, is to change some of the fixed royalty fees to reflect new media channels, but this will take a lot of time, too.

One last thought, and this to me is really interesting, in the computing world, open source software has been a raging success, and I think the principal under which open source operates could be applicable to music. In the world of free open source software, developers operate under a GNU license, which is defined in this pull quote from gnu.org:

“Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for them if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs, and that you know you can do these things.”

Could music operate under such a licence? Creative Commons is the guinea pig, I think, but to hedge their bets, both GNU and CC offer sets of rights that are more restrictive than those that govern free open source software. In open source, this is called commercial open source, which lets you publish only portions of your code. In music, for example, Deep Purple might let anyone use the phrase “smoke on the water” but the riff, well, that would be protected!

I’m sure the debate over file sharing will rage on, and all I can say is that if I ever have a big hit song, whatever laws/practices are in place let me make a buck or two.

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