Dennis Prager and Downloading Music

[Elfdart]

In the L.A. Times, Dennis Prager wrote a rather silly column about the attitudes of young people towards stealing. On his radio show, he and some of his callers kept referring to the downloading of music by kids as thievery. I called his show and pointed out that if downloading music is stealing, so is using a VCR to record TV shows or movies. I pointed out that twenty years ago kids used to record music from radio stations on boom boxes and the sky didn't fall. He said downloading would hurt the music business; I said there's no evidence for that. Then he tried to compare downloading to photocopying the pages of a book then when I pointed out that in certain cases (Fair Use, for example) it could be legal depending on how and why... then he cut me off and clucked about how "young" people don't know right from wrong and it must be a generational thing.

I detect the smell of horseshit. However I'm so computer illiterate I didn't figure out cutting and pasting until I started posting here. I haven't downloaded music or movies, but I have taped and TiVoed movies, concerts, music and TV shows. Can anyone tell me if there's a difference between the two and what that difference would be?

I've always been under the impression that copying media is allowed for personal use as long as the copy isn't sold or distributed in a way that undercuts the market.

[Rogue 9]

I've always been under the impression that copying media is allowed for personal use as long as the copy isn't sold or distributed in a way that undercuts the market.

Yeah, that's kind of the point of fair use, but distributing music online for free in mass quantities does have the potential to undercut the market.

[RedImperator]

The problem with downloading and filesharing is twofold. First, digital recordings can be copied repeatedly without loss of fidelity. Analog recordings degrade every generation, making widespread distribution impossible unless you make many copies of a single master recording. Second, a digital file can be distributed to thousands of people in a few minutes, which is obviously impossible with the tape you made of the top 40 countdown.

Does this justify the music industry's behavior? No. But it is a different issue from people making VCR and audio casette recordings.

[Elfdart]

But my argument with Prager was over the principle of the matter. From what you and Rogue 9 have told me, the only real difference is in technology and ease of copying and distributing. The quality of the copy shouldn't matter.

I just wonder if home recording or downloading is such a bugaboo for the RIAA and MPAA, when are they going to go after used book and music stores?

In any event, I think Dennis Prager was just looking for an excuse to release methane about how those darn kids have no morals, since when I brought up Fair Use he hung up.

[Master of Ossus]

The problem with downloading and filesharing is twofold. First, digital recordings can be copied repeatedly without loss of fidelity. Analog recordings degrade every generation, making widespread distribution impossible unless you make many copies of a single master recording. Second, a digital file can be distributed to thousands of people in a few minutes, which is obviously impossible with the tape you made of the top 40 countdown.

That is also true of DVD recordings, and no one in the movie or TV industry complains about those (although they also have a problem with downloading movies, as the stunt driver who comes on before the previews incessently reminds me).

[The Aliens]

But my argument with Prager was over the principle of the matter. From what you and Rogue 9 have told me, the only real difference is in technology and ease of copying and distributing. The quality of the copy shouldn't matter.

It does matter, however- if it's easy to do and has no obvious disadvantage (loss of fidelity), more people are likely to engage in it, and that obviously has a negative effect on the market. VCRs of television programs aren't huge business because the recording quality isn't the best, and audio cassettes didn't decimate the music industry because one can only make so many copies of a copy before the sound degrades, and even making copies off a master tape takes time (not to mention the difficulty of distributing the bootlegs).

The reason digital music recording is such a problem is that it's easy to do and easy to reproduce. And for the record, burning a CD you haven't paid for is theft, by definition.

[The Aliens]

The problem with downloading and filesharing is twofold. First, digital recordings can be copied repeatedly without loss of fidelity. Analog recordings degrade every generation, making widespread distribution impossible unless you make many copies of a single master recording. Second, a digital file can be distributed to thousands of people in a few minutes, which is obviously impossible with the tape you made of the top 40 countdown.

That is also true of DVD recordings, and no one in the movie or TV industry complains about those (although they also have a problem with downloading movies, as the stunt driver who comes on before the previews incessently reminds me).

A television program doesn't cost you $15 a pop- it's not surprising that there isn't a black market in it.

[General Zod]

But my argument with Prager was over the principle of the matter. From what you and Rogue 9 have told me, the only real difference is in technology and ease of copying and distributing. The quality of the copy shouldn't matter.

It does matter, however- if it's easy to do and has no obvious disadvantage (loss of fidelity), more people are likely to engage in it, and that obviously has a negative effect on the market. VCRs of television programs aren't huge business because the recording quality isn't the best, and audio cassettes didn't decimate the music industry because one can only make so many copies of a copy before the sound degrades, and even making copies off a master tape takes time (not to mention the difficulty of distributing the bootlegs).

The reason digital music recording is such a problem is that it's easy to do and easy to reproduce. And for the record, burning a CD you haven't paid for is theft, by definition.

How exactly is someone being deprived of something by the act of burning it to a CD any more than downloading it to a hdd? All that changes is the way you can now listen to it, and if you're going to argue sales I should point out that libraries and radio stations can deprive a musician of sales if someone hears one of their songs, thinks it sucks and decides not to buy the album.

[The Aliens]

How exactly is someone being deprived of something by the act of burning it to a CD any more than downloading it to a hdd? All that changes is the way you can now listen to it, and if you're going to argue sales I should point out that libraries and radio stations can deprive a musician of sales if someone hears one of their songs, thinks it sucks and decides not to buy the album.

When you take a CD you don't own, copy it, and keep it in your possession, you've recieved a good that you haven't paid for- and if you don't pay for it, the artist doesn't get the money for it. If you've already bought the CD, and want to make copies for your own personal use, then your point is correct, 'All that changes is the way you can now listen to it'.

It's patently absurb to say that radio stations decrease sales- the radio is one of the best ways for a new artist to get his music out to the public. If someone lsitens to a song on the radio and doesn't like it, then doesn't buy the CD, that isn't reducing the artist's sales- they were never going to buy it. But burning a CD one would otherwise buy does decrease sales, and keeps money from going to that artist.

Libraries are a different beast- you're renting teh CD, listening to it, and giving it back, you're not keeping it as part of a private collection, as you would illegally burned music.

[General Zod]

When you take a CD you don't own, copy it, and keep it in your possession, you've recieved a good that you haven't paid for- and if you don't pay for it, the artist doesn't get the money for it. If you've already bought the CD, and want to make copies for your own personal use, then your point is correct, 'All that changes is the way you can now listen to it'.

Except when it's been downloaded, you're not taking the physical CD. You're taking a copy that someone else has most likely made of their own legally purchased CD and using it for yourself. The only real difference between this and borrowing it from the library or a friend to listen to is scale and how many people can be reached.

It's patently absurb to say that radio stations decrease sales- the radio is one of the best ways for a new artist to get his music out to the public. If someone lsitens to a song on the radio and doesn't like it, then doesn't buy the CD, that isn't reducing the artist's sales- they were never going to buy it. But burning a CD one would otherwise buy does decrease sales, and keeps money from going to that artist.

I'll direct you to this study. It helps to show that the damage caused by piracy is nearly insignificant.

Libraries are a different beast- you're renting teh CD, listening to it, and giving it back, you're not keeping it as part of a private collection, as you would illegally burned music.

See above. Being able to listen to the entire thing from one source and then deciding not to buy it is little different from downloading an album of mp3s and choosing not to buy it after deciding it sucks.

[RedImperator]

But my argument with Prager was over the principle of the matter. From what you and Rogue 9 have told me, the only real difference is in technology and ease of copying and distributing. The quality of the copy shouldn't matter.

I just wonder if home recording or downloading is such a bugaboo for the RIAA and MPAA, when are they going to go after used book and music stores?

In any event, I think Dennis Prager was just looking for an excuse to release methane about how those darn kids have no morals, since when I brought up Fair Use he hung up.

The technology makes a difference with regards to the principle because an analog recording has what amounts to a built in self-destruct. After a few generations, the quality degrades to the point it's no longer listenable. Digital doesn't--a single digital recording on Kazaa can multiply exponentially. It's the scale of the thing which has gone up the RIAA's ass. Technically, it's illegal to make a tape of an album for a friend and give it away, too, but nobody was much bothered by that as long as you weren't making money on it, because a recording couldn't spread very fast.

As far as I'm concerned, there's nothing wrong with making a recording of music you've purchased for your own use. And even though it's technically illegal, there's nothing wrong with making a copy of an album for a friend. I'll even go so far as to say that downloading an MP3 to see if you like an album is fine--considering what the record companies charge, it doesn't make sense to buy an album without testing it first. But I'll draw the line at collecting MP3s off the Internet to build a playlist without paying for music. That's theft, pure and simple.

[The Aliens]

Except when it's been downloaded, you're not taking the physical CD. You're taking a copy that someone else has most likely made of their own legally purchased CD and using it for yourself. The only real difference between this and borrowing it from the library or a friend to listen to is scale and how many people can be reached.

Semantic argument- you're not taking the physical CD, but you're taking teh content of it, which is all that matters. I'm not worried about the little plastic discs, it's the music on it that's important.

And you're exactly correct- the difference is the scale. An artist can afford to have a few people sharing CDs to see if they like it before going out and buying it- but many of them can't afford people taking their whole album and keeping it without paying a cent for it.

I'll direct you to this study. It helps to show that the damage caused by piracy is nearly insignificant.

"For the study, released Monday, researchers at Harvard University and the University of North Carolina tracked music downloads over 17 weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being downloaded. Even high levels of file-swapping seemed to translate into an effect on album sales that was "statistically indistinguishable from zero," they wrote."

This depends entirely on the songs they're using. File-sgharing might make absolutely no difference to Coldplay or U2 in terms of sales- they're guaranteed millions of copies of anything they put out. But artists like Howie Day or hawksley Workman would lose a higher percentage of their sales to this sort of thing. For example, say Coldplay sells 1000 CDs in a week at a music store- if one person downloads their album and decides not to buy it, Coldplay have lost 0.1% of their total sales. If Hawksley Workman sells 5 CDs in a week at a music store, if one person downloads hisalbum and decides not to buy it, he's lost 20% of his revenue. This study is meaningless without knowing which bands were studied.

See above. Being able to listen to the entire thing from one source and then deciding not to buy it is little different from downloading an album of mp3s and choosing not to buy it after deciding it sucks.

Not true- you have to give back the CD to the library, and all the music it contains. If you keep the album worth of mp3's, you've stolen them, ebcause you've recieved a product you did not pay for.

[Keevan_Colton]

Interesting point to note, those who cant afford it, are unlikely to get anything anyway even if you do buy the CD thanks to the fact that the record companies tend to recoup the cost of production, promotion and so on out of the artists royalties in addition to their cut of the proceeds.

Usually the artist doesnt get any royalties until the record company has got back every single penny spent on the record ON TOP of their share of the profits.

[The Aliens]

Interesting point to note, those who cant afford it, are unlikely to get anything anyway even if you do buy the CD thanks to the fact that the record companies tend to recoup the cost of production, promotion and so on out of the artists royalties in addition to their cut of the proceeds.

Usually the artist doesnt get any royalties until the record company has got back every single penny spent on the record ON TOP of their share of the profits.

Sorry, but do you have a source for this? I was under the impression that every album sale was split into parts, with most of it going to the company, but the rest going to the artist. I wasn't aware that record companies get 100% of teh early sales.

[Keevan_Colton]

Interesting point to note, those who cant afford it, are unlikely to get anything anyway even if you do buy the CD thanks to the fact that the record companies tend to recoup the cost of production, promotion and so on out of the artists royalties in addition to their cut of the proceeds.

Usually the artist doesnt get any royalties until the record company has got back every single penny spent on the record ON TOP of their share of the profits.

Sorry, but do you have a source for this? I was under the impression that every album sale was split into parts, with most of it going to the company, but the rest going to the artist. I wasn't aware that record companies get 100% of teh early sales.

They dont get 100% the store and the taxman get some...and the artist usually gets an advance before the album is released to keep a roof over their head etc. but that comes back out of the royalties too. I posted a piece on it just earlier today from a group of soliciters explaining the usual contract set up in the music industry. I'll pull it up again and repost it here...it's not the best piece on it, I cant find the original one I read about this which convinced me that a career in music is an even better choice than journalism if you want to end up poor.

[Keevan_Colton]

1.0 Overview

1.1 The Basic Royalty System

Under the system operated by the majors, the company pays for everything and assumes all financial risk. However, certain expenses are recovered, or "recouped" from the artist's royalties. The artist never has to pay money back to the company from his own pocket. Recoupment forms a very significant part of the calculation of the payments to be made to the artist. A common misconception is that recoupment has something to do with profit. However, the point at which "recoupment" occurs bears no relation to the point at which the company may begin to make a profit.

1.2 Recoupable Expenditure

So what is recouped from the artist's royalty and how does this work? The artist will be entitled to a royalty for each record sold. The calculation of the per unit royalty is complex (see paragraph 3.0 below). Assume the royalty for each album sold is £1. If the company sells 100,000 albums, the artist is owed £100,000 in royalties. The company will first recoup from this any advances previously paid to the artist and any other recoupable expenditure. Recording costs are always recoupable. Manufacturing and distribution expenses are not recoupable. Nor, ordinarily, are marketing and promotional expenses. However, a number of grey areas have developed.

1.3 What is recoupable?

1.3.1 Recording Costs

Recording costs are fully recoupable and the recording agreement will include a wide definition of such costs which will extend to studio costs, musicians' fees, equipment hire, travel and accommodation expenses, producers' fees and so on. The definition will also extend to "cutting" and mastering costs but where does the recording process end? One grey area is the extent to which mixing costs incurred after "delivery" of the finished master should be treated as a recoupable recording cost. Some companies (and artists) like to release many different mixes of a particular single. Arguably, this is more in the nature of a marketing exercise, so the costs involved should be borne by the company on a non-recoupable basis. An artist very rarely achieves this; the best that might be done is to restrict the company's ability to recoup re-mix costs from royalties which accrue in relation to that particular remix.

1.3.2 Re-Mixing Costs

Aside from marketing exercises of that kind, record companies often spend substantial sums on mixing and re-mixing an album, even before any of the material is released. Again, these costs are recoupable. As a limited means of protection an artist should try to secure a right of approval over the budget for any re-mixing.

1.3.3 Promotional video costs

As a rule, promotional costs incurred by a company are non-recoupable. However, the company will argue that promotional video costs are in the nature of recording costs, which are recoupable. The usual compromise is that 50% of video costs are recoupable from the artist's record royalties. The company will invariably insist that any video costs which are unrecouped (including the 50% which is not recoupable from record royalties) may be recouped from video royalties. The opportunities to profit from videos are generally limited to the release of compilation videos, video juke box payments and broadcast. The recoupment provisions ensure that the artist is unlikely ever to receive any income from the exploitation of promotional video material.

1.3.4 Independent promotion costs

An artist may try to persuade the company to use independent promoters. Many companies will resist this because they have their own in-house promotion teams, and will not wish to incur the expense of outside promoters. Independent promotion is sometimes the only means of ensuring that a new release is given sufficient priority and is worked hard enough. The company is likely to insist that some or all of the costs must be recoupable. US companies tend not to have strong in-house promotion teams. Some cynics assume this is because it would not be seemly for a record company employee to do some of the things which promotion teams have to do in order to help break a new record. It is difficult in the US to break a new artist without liberal use of independent promoters (and US independent promoters are particularly expensive). Often, the pressure to use independent promoters tends to come from the artist or the artist's manager. The company will often turn this pressure back on the artist/manager by insisting on the right to recoup all such expenditure.

1.3.5 Tour Support

Likewise, there will often be pressure from the artist/manager for the company to provide tour support. Again, this is a promotional expense. The artist would not be touring at a loss (which is what gives rise to the need for tour support) except to promote record sales. At one time, tour support payments tended to be 50% recoupable but in recent years the trend has been for 100% of any such payments to be recoupable.

1.3.6 Television advertising

Most recording contracts allow the record company to decide whether or not it wishes to spend money on television advertising. The usual arrangement is that such expenditure is non-recoupable. However, the company claws back all or part of the costs by reducing the royalty payable on sales promoted by the advertising campaign (see paragraph 3.8.4 below). Recently, there has been a trend towards paying full royalties in the ordinary way but instead treating all or part (often only 50%) of advertising costs as recoupable.

A brief explination of how things usually work with a major record label.

[The Aliens]

So, to summarise- the company pays for everything, and the artist pays them back out of his royalties earned. If his total royalties are less than what the company spends on producing the album, the company swallows the cost and the artist doesn't have to pay anything.

While an inetresting new insight for me, it doesn't change the fact that if you download a CD instead of buying it, the artist gets less money- even if he needs a certain amount before he sees a penny of it, not buying that album reduces the amount of money the album earns, which means the artist has a harder time earning money on it.

[Keevan_Colton]

So, to summarise- the company pays for everything, and the artist pays them back out of his royalties earned. If his total royalties are less than what the company spends on producing the album, the company swallows the cost and the artist doesn't have to pay anything.

While an inetresting new insight for me, it doesn't change the fact that if you download a CD instead of buying it, the artist gets less money- even if he needs a certain amount before he sees a penny of it, not buying that album reduces the amount of money the album earns, which means the artist has a harder time earning money on it.

The way it works out, as was pointed out in another article, you basically have to be in the platinum selling crowd to see back anything in royalties anyway...which as was said above means that those occasional sale losses arent an issue.

The increased exposure of piracy actually does the artist more good than the few pence per album towards the hundereds of thousands the company will say it cost to put it all together...tours and merchandise at gigs are the main source of income for artists on the margins.

[The Aliens]

The increased exposure of piracy actually does the artist more good than the few pence per album towards the hundereds of thousands the company will say it cost to put it all together...tours and merchandise at gigs are the main source of income for artists on the margins.

This is absolutely true in the case of people who download a song or two and then go out and buy the album- in this case piracy allows the artist to get exposure. I'm not saying that people shouldn't downlaod a song or two to see if they like the music- I've done this myself dozens of times. What I am objecting to is those who download or rip entire CDs that they haven't paid for. Regardless of who the money goes to, taking an entire CD without paying for it is theft.

[Durandal]

But I'll draw the line at collecting MP3s off the Internet to build a playlist without paying for music. That's theft, pure and simple.

Really? I won't, at least not all the time. These are the same cretins who extended copyright to utterly absurd lengths so they could gouge people for entertainment for decades after it was produced. The original copyright period was 17 years. There's been no demonstrable need for 80+ years of copyright put forth other than "BUT OUR PROFITS OMG!!!!!!!!!!!!"

The entertainment industry's racket didn't start with online downloads. It's always been that way. Studios and labels have always banded together for mutual benefit to screw the consumer, and they've always gotten the government to play along with them.

And hell, they've even gotten piracy taxes on computer levied in certain countries, even this one. So you pay more for a hard drive because it will, of course, inevitably be used to store pirated media. Great, I say. I paid my piracy tax, so now I'll feel free to pirate all I want. Only it's not piracy, because I paid for it. But no, these fuckers want it all. They want people to pay a piracy tax and prosecute them for the very act they are paying taxes on!

[Keevan_Colton]

Not true- you have to give back the CD to the library, and all the music it contains. If you keep the album worth of mp3's, you've stolen them, ebcause you've recieved a product you did not pay for.

Nope copying the CD from the library would be 100% grade-A legal with no wiggle room under the AHRA (1992) in the US. It allows for copying of music in digital format for noncommercial use.

[The Aliens]

Nope copying the CD from the library would be 100% grade-A legal with no wiggle room under the AHRA (1992) in the US. It allows for copying of music in digital format for noncommercial use.

From here/, "It is important to note that the AHRA does not say that such copying is lawful; it simply provides an immunity from suit."

So, you can't be sued for it, but that doesn't make it legal. In any event, this doesn't change the fact that taking a playlist of mp3s in lieu of paying for a CD is theft. Sure, you may be stealing from the bad guys- no-one denies the recording industry engages in unsavoury practices. However, these arguments are merely justification for theft, not saying why it isn't theft.

[The Dude]

But my argument with Prager was over the principle of the matter. From what you and Rogue 9 have told me, the only real difference is in technology and ease of copying and distributing. The quality of the copy shouldn't matter.

I don't think the principle has changed from the point of view of the studios/labels and their defenders. They oppose all of these activities and view them all as "stealing". It's just that their tolerance for it has declined now that production and distribution of high-quality copies has become so easy and common.

[The Dude]

For Canadians, it is legal to copy any audio recording (even one that belongs to someone else) onto a CD, tape or MP3 player for personal use. You can't, however, make a copy of a recording you own and give it away. It's a slim and unenforceable distinction.

For this privilege, you pay a $0.21 levy on every CD-R or CD-RW you buy, and $2 to $25 dollars on each MP3 player (depending on capacity).

[Keevan_Colton]

Copyright infringement != theft

Legally and ethically they are not the same. Theft involves depriving someone of something they have, copyright infringement involves depriving them of something they could theoretically have maybe possibly in the future.

The AHRA also provides CASH for copyright holders in exchange for them giving up the right to complain about people copying stuff for non-commercial use. Is it theft when the person gets money and signed off on it already?

You pay on every single blank CD and hard disk for the right to copy music. If you cant copy music then the recording industry are in fact the ones engaging in theft taking cash in exchange for nothing.