My thoughts on Napster...

Bobby Lee · From: Cloverdale, California, USA

This isn't right vs. left, it's right vs. wrong.

John Steele · From: Renfrew, Ontario, Canada

quote:

nobody really cared when people were using their stereo to record songs off the radio onto cassettes

Sorry, the 1942 recording ban was about artists' royalties. They cared then.
Last year, the musician's union lobbied to have a tax placed on blank tapes because of the royalty abuse. It has been put in place. They cared then.
I'm sorry, but your statement is just wrong.
As far as your often-repeated contention that CD's are overpriced, I disagree on that point too. With small-market cd's like some of us produce costing 7-$10,000 to create, and a potential market of way less than 1000 sales, your figures just don't add up. (As many others have pointed out).
Of course, you could prove us all wrong by producing a cd and selling it for $7. I'd buy one

I'm not holding my breath though.
Sure, your contention makes sense for the Brittany Spears and other T&A acts who sell hundreds of thousands. It makes no sense to the rest of the industry (which are the majority).
As for "The reason Napster is so popular", well, c'mon now.... don't complicate something so simple, Donny.. the reason Napster is so popular is because people can get something for nothing . End of story. Anyone who tells you they are fighting some moral crusade is full of it, right to the eyeballs. mho.
-John

[This message was edited by John Steele on 14 March 2001 at 09:46 AM.]

Dennis Scoville · From: Indiana

Moon in Alaska · From: Kasilof, Alaska * R.I.P.

No matter how much we debate this subject, the courts have ruled that it is not legal to
place copywrited material on a web site. Now that seems fairly simple to me !!!!!

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Frank Estes · From: Huntsville, AL

C Dixon · From: Duluth, GA USA

Tony Palmer said,

"Like you are going to worry about "cheating" Warner Bros. or Universal out of movie revenue.
The difference pointed out in this original (John Hughey)post was that when smaller independent artists are subjected to the same "sharing" it hurts them financially to a MUCH greater degree."

Are you saying its ok to steal against big entities but wrong to steal against small ones?

carl

Tom Olson · From: Spokane, WA

Regarding whether CD's are too expensive or not, it seems pointless to argue about it. We live in a free-market economy. Prices are established, for the most part, on the laws of supply and demand. If the cost of a CD is too high for somebody, then don't buy the darned thing! Nobody deserves to be able to buy CD's for a certain price.

CD's are priced by experts who determine the optimum price for maximum profit. The record companies are the one's who are taking the risk and putting up the money to produce the CD's -- so if they want to sell them at a certain price why shouldn't they. What do they owe to any of us?

Now if we lived in a communist society and the great comrades determined that every good member of the society should have a Buddy Emmons CD, and that CD should cost $5, then it would probably happen. But, fortunately for most of us, our society is based, at least for the time being, on Capitalistic principles.

David Pennybaker · From: Conroe, TX USA

Tom Olson · From: Spokane, WA

Regarding making copies -- there is a difference between making a legal copy and making an unauthorized copy.

Certain copying is legal. If you buy a CD, a book, a VHS movie, or whatever, you can make all the copies you want for your own personal use. Also, certain educational copying is legal as is copying for press reporting.

For the most part, it is not legal to copy a work for the purpose of cheating the producer of the work or for using the work for your own gain without permission or without compensating the owner of the work.

In other words, you can't make copies of a work and sell or distribute them without the permission of the owner. Also, you can't, for example, play someone else's song in a night club without properly compensating the owner of the song, because you are using the song for your own benefit -- whether it be for making money or for drawing customers -- it's still benefitting you to use someone elses work.

Tom Olson · From: Spokane, WA

David Pennybaker brings up a good point -- that is, certain recourses against infringement of copyrights are only available if the creater of a work has taken the necessary steps to copyright that work. That doesn't mean that uncopyrighted works are free for the taking -- it only means that certain recourses, such as treble damages, etc, etc, are only available if the copyrighting process has been followed.

Tom Olson · From: Spokane, WA

Sorry for posting so often, but I just re-read David's post and feel this is important.

David, I couldn't download the song so I couldn't tell what song it is. As rediculous as this may seem, if the ownership rights to that song are owned by somebody else, than you probably are breaking the copyright laws by distributing the song. The copyright laws forbid unauthorized duplication. It doesn't really matter that your not selling it, all that matters is that the duplication is unauthorized.

Bobby Lee · From: Cloverdale, California, USA

David Pennybaker · From: Conroe, TX USA

It's definitely not my song, Bob. One of the writers is Skip Ewing (not sure if there were others). The song was a single released by Kenny Chesney.

The tape itself is a karaoke cassette tape sold by "Sound Choice". I know that there is some copyright verbage on the tapes, but I'll have to check the details on that.

But, the tapes were definitely meant for the purchaser to sing to.

I've seen "karaoke-DJ's" using tapes like these, actually the CD versions with the lyrics shown on a TV screen in bars before. I'm not sure if that usage is actually legal, though.

I would certainly never put out a collection of these on a CD that I would try to sell, or to promote myself in any way. I'm quite certain that would be a copyright violation.

But I have made cassete tapes in the past (planning on doing this on CD now) of some of these songs (with me singing to the karaoke background tapes) to give to friends and family. I've always assumed that such usage would be within the intent for which the tapes were sold/purchased.

I do NOT make the tapes (or copies) avaiable as background tapes. I was actually quite offended when several people have suggested that I download these types of tapes from Napster instead of purchase them. I wasn't even aware that karaoke tapes were available on Napster -- not suprising since I don't have that software, I guess.

I guess it's all kinda murky to me. Presumably "Sound Choice" has purchased copyrights to these songs, so that they can have bands record them, and then sell them. Obviously, it's intended that I can sing along with them. But,

Can I sing with the tapes with an audience? (I think so.)

What about if I charge that audience? (I'm quite certain that's illegal).

Can I make copies of me singing with the tapes to give to friends and family? (I think so.)

Can I make those same copies to sell? (I'm quite certain that's illegal).

Can I use those same copies to promote myself? (I don't think so.)

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The Unofficial Photographer of The Wilkinsons

Tom Olson · From: Spokane, WA

David, you definitely said it right when you said this stuff (copyright law) is kind of "murky." It definitely is -- there are many nuances and twists and turns in the law depending of the facts or circumstances of a particular situation.

You also have the right idea in checking with the copyright verbage that came with the tapes or CD's you have. That should at least give you some idea of what's up.

As far as I know, basically, any time a copyrighted work is performed in public you are subject to copyright laws. So, in other words, if you perform with the tapes in the privacy of your own home, or make tapes of you singing to the background music for your family or a few of your friends, that's probably not a violation of any copyright laws.

On the other hand, if you were to perform with these tapes in public, even if for free, or if you were to distribute tapes of you singing to this background music to the public, whether or not you charged money, you would probably be in violation. Not only that, but if you knew or should have reasonably known about the infringement you may be subject to criminal penalty in addition to civil liability.

So, to address your questions:

Can I sing with the tapes with an audience? (I think so.)

****that depends on what kind of audience it is -- if it's just your family in your own home, it's probably OK

What about if I charge that audience? (I'm quite certain that's illegal).

****any public performance, whether you charge the audience or not is probably a violation of copyright laws

Can I make copies of me singing with the tapes to give to friends and family? (I think so.)

***you're probably correct -- no problem with a few copies for family and friends

Can I make those same copies to sell? (I'm quite certain that's illegal).

***right again -- not unless you obtain permission and pay appropriate royalties

Can I use those same copies to promote myself? (I don't think so.)

***this would be a public performance or distribution which is against the copyright laws -- of course, you could try to get permission to use the songs, but w/o such permission such use is probably a violation.

David Pennybaker · From: Conroe, TX USA

Thanks, Tom. You and I seem to agree on all those points. I'll try to quote the copyright verbage tonight. (Hope that's not a copyright violation -- lol).

What I find curious is the constant use of these karaoke tapes/CD's as entertainment. Many bars have weekly (some nightly) contests, etc. I've seen traveling KJ's (karaoke-jockeys) who clearly use these CD's to allow bar patrons to sing. These KJ's are obviously getting paid by the bar owners to provide this service.

But, does any royalty get paid? Do they sell a special KJ-version of these CD's that compensates for this? If so, I'm unaware of it.

For that matter, how do clubs that play CD's or hire live-bands pay for royalties? I've been led to believe that the RIAA (right acronym I hope -- I can never remember) collects royalties from places like this -- based on which songs they play. But I also have some doubts. A friend of mine is a DJ at a local bar, and he's unaware of them keeping any playlists, etc. -- so there'd be no way to compensate based on what songs are actually played. Perhaps it's just a standard fee, based on hours of playing, and the proceeds are divvied up some other way?

At any rate, surely the makers of these karaoke CD's know about these quite popular uses of their product at bars, etc. And surely the copyright owners do, too.

I suppose it's up to them when to try to enforce their copyrights. (But doesn't that cause other legal concerns, too? Like if a neighbor builds a fence on your property, and you never do anything about it.).

At some point, though, it does start to get ridiculous. Like when the RIAA tried to demand royalties for Scouts singing songs at camp, etc.

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The Unofficial Photographer of The Wilkinsons

Pat Burns · From: Branchville, N.J. USA

Chris Walke · From: St Charles, IL

There's alot of talk about cheating the record company. That's not the issure that I'm concerned about. I'm more concerned about the songwriters and their intellectual property. They are the ones who are not getting the publishing royalties for these sales, and many of them are not out in a band on tour, so there's not money coming in that way. They're just songwriters. Talk about stealing someone's bread and butter.

And the "I only like one song on the whole cd" excuse: That's a crock. You ever pick up a food item at the grocery store you haven't tried before and found out you don't like the taste? Do you return it because it doesn't suit your pallete? Have you been ripped off? NO! And NO! If you only like one chapter of a book and the rest are boring to you, have you been ripped off? NO!!

What if you're playing a gig and someone's there because they heard your band play one song at the end of your set at a festival last week. They paid their cover to get into the club and they hate the set other than the one song they'd heard before. Have they been ripped off? Should they demand their money back...or walk in to your next gig and insist they shouldn't pay a cover because they're only gonna listen to one song?

Gimme a break. Sometimes you like the whole cd, sometimes you don't. Nothing as subjective as music is guaranteed. Either way, they are musicians and songwriters trying to make a living. Honor that, will ya?

Tom Olson · From: Spokane, WA

David P., I'd be curious to know what the Copyright verbage on your tapes says. Try to post it if you can.

I agree, it all seems to get quite rediculous at times. I'm not sure how the actual nuts and bolts of royalty payments are handled, but I would be surprised if there aren't some type of arrangement for the DJ's to make some sort of royalty payments to the owners of the songs.

I think what your talking about regarding the fence is called adverse possession. That is, when you adversely possess someone elses property for a statutory period, you can gain title to that property if all the conditions are met. In the case of copyrights, you are correct that they are property. Whether they are subject to adverse possession is a good question. I would tend to think that copyrights are not subject to adverse possession because of several reasons: 1) copyright law is exclusively federal statutory law which is based on the Constitution, it's not common law; 2) there are probably good policy reasons not to make copyright law subject to adverse possession -- for example, it's too difficult for the owner of a copyright to police his property (the copyright). That is, you can't expect a copyright owner to know what's being done with his copyright at all times and in all places -- it's just not practical. Adverse possession is based on the policy that someone who sits on their rights will lose them and also it's based on the policy that property should be put to the most efficient use possible(if you don't even know that someone is adversely possessing your land for 10 years, then you sure aren't using it very efficiently)However, you can see that these policies can't very easily be applied to copyrights.

Chris -- In some cases, the artist may have sold their rights to their own music in which case they wouldn't get any royalties anyway. I know this might be hard to believe, but just because you write a song doesn't mean you will always have rights to it. When you create it, you automatically own the rights to it. But, if you sell the rights, for example to the record company, you no longer have any rights to the song, and you are subject to the same copyright laws as everyone else -- even if it's your own song!! A good example of this is John Fogerty of Creedence Clearwater Revival. He doesn't own any of the rights to any of those well known songs he wrote. The same with the Beatles. The rights are owned by Michael Jackson.

[This message was edited by Tom Olson on 14 March 2001 at 02:33 PM.]

Mike Perlowin · From: Los Angeles CA

Does anybody remember when the Urban Cowboy craze hit and we all had to play "Looking For Love" every night? I remember some guy from ASCAP wanting to collect money from the musicians for playing the song.

Now, theoretically, it't right for the songwriters to collect when their songs are played, But we played five 45 minute sets a night. That comes to around 60 to 75 songs a night. We only made about $35, so if we payed even 50 cents per song, we'd wind up playing for free or possible even owing money at the end of the evening.

Are we club players guilty of theft of intellectual property? What is the right thing to do about this? Stay home and not play? Play for free all the time?

In the case of Looking For Love, my attitude was that the guy who wrote the song was making millions off it, while I and the other musicians were barely scraping by, and I felt that ASCAP was being unreasonable and unrealistic, and I felt no guilt whatsoever about playing that or any other song.

Chris Walke · From: St Charles, IL

Tom, I'm aware of that aspect of the issue, but I'm mostly concerned about the people who are making a living writing songs. People who are songwriters, but not performers. I think they are the people who could be most hurt by the Napster trend. I would think that they are not surrendering the rights to their songs--how else would they make money for their trade? Or am I wrong about how it works? Perhaps they sell the rights for a fee up front and make no royalties? I don't know how this part works.

All I know is it seems very wrong to exploit an artist's hard work. You Napster fans with day jobs: What if someone decided to not pay for, say, an hour's worth of your wages from time to time? What if it happened several times? What if it became a trend to not pay you for bits and pieces of the projects you are working on? Your prospective clients reap the benefits of one or several of your ideas but don't actually hire you? Would that be fair?

I don't think you can really hurt the record companies with Napster. I think they will weather all this just fine, even thought they are complaining and fighting. It's the artists who will be hurt. And even if you do think "we're gonna stick it to the record companies for charging us $17 for a cd" and use Napster instead of buying the products, who ultimately suffers the burden if those companies stumble or topple? How many artists get dropped? How many lose distribution and marketing? How many lose radio play? Is this your way of supporting musicians?

Jim West · Posted 14 Mar 2001 3:35 pm

>>>In the case of Looking For Love, my attitude was that the guy who wrote the song was making millions off it, while I and the other musicians were barely scraping by, and I felt that ASCAP was being unreasonable and unrealistic, and I felt no guilt whatsoever about playing that or any other song.<<<

So it's OK to steal from someone who has more money than you? If that's the case, how much more do they have to have for it to be OK for you or anyone else to rip them off?

The bottom line is it's private property and until the owner of that property gives express permission for its use, it's theft, plain and simple. The people trying to make the arguement that the high price of a CD justifies downloading it for free are wrong. If I don't like the price someone is asking for a product, I don't buy it. I don't wait until they're not looking and take it.

This attitude that we are entitled to something for free because the owner of that something has so much more than we do is sickening.

Tom Olson · From: Spokane, WA

Mike P., you're right -- it's kind of a strange situation when you really look at actual facts. The owner of each song owns exclusive rights to that song. In the eyes of the law, it doesn't matter that the bar band is only making $35 a night per man. If that bar band plays a song that's owned by somebody else, they are liable for royalty payments -- that's all there is to it. For the most part, though, it's just not practical to enforce every little infringement of the copyright. That's why a lot of bands get away with it. It's still a violation of copyright laws. If you want to play music without violating copyright laws you have 3 choices: 1) pay the royalties 2) buy the rights to the song or 3) write your own songs.

Chris, I think you probably understand the situation pretty well. Once a person writes a song -- whether that person is just a song-writer or a performer -- that song becomes a piece of property, just like your house or your car. The property is referred to as the COPYRIGHT in that song. The owner of the copyright has the exclusive rights to the control of that song. This is based on the Constitution of the United States. If you read it, you will find the part that talks about copyrights. Our Founding Fathers were smart enough to realize that, in order to promote creativity and innovation in society, you must have copyrights and patents.

Normally, the one who writes the song automatically owns the copyright to the song. That is, unless they either sell the specific copyrights to the song, OR they sign a contract saying that they will assign the rights to any songs they write within a certain period of time, or whatever. When the writer sells the copyright, they are selling the whole "kit and cabootle" (sp?). That is, when a writer sells a song, they no longer own the copyrights and are no longer entitled to any compensation for the use of that song whatsoever.

I don't really know how the actual deal works, but I imagine that many song writers end up selling the copyrights to their songs for a lump sum. Others may sell them for a percentage of future royalties. Still other writers do not sell the copyrights, but hang on to them and hire an agency to collect the royalties. Most performer/writers probably fall into the last category.

In any case, many times the public really never knows who owns the copyright for any given song. It may be owned by a song-writer, it may be owned by a performer, it may be owned by a publishing company, and it may be owned by a record company.

[This message was edited by Tom Olson on 14 March 2001 at 03:45 PM.]

Jason Odd · From: Stawell, Victoria, Australia

It's kind of past the point where these comments are relevant, but I'll go for it anyway.
When a film by a producer or writer I admire comes out, I actually got to the cinema and pay a box office price to see it. I want someone to count me in the figures, I want to see it on the big screen and so on.
As much as I love the cinema, I skip a lot of films due to the price and the basic fact that I'm pretty much digusted with the Hollywood trite.

As such I just about always have an enjoyable cinema experience, by keeping an eye out for reviews, releases and info on who made what, sometimes I see an ad and take a chance, I have a good idea of what is weird enough to enjoy and I'm pretty lucky with my picks.
Later I might watch it on video, or catch a video of something that was really hyped at the cinema and kind of threw me off because of the hype.
In the last decade I have seen two or three real stinkers, every one of them were when I went with friends and had to compromise my taste.
The point is I'm happy to pay those bucks if I really want to see that film at the cinema, rather than wait for it to come on televsion for 'free.'
I don't download anything except what people send me when it comes to films and music, and in the case of films I ask people not to send anything and clutter my inbox.

As to CDs, I don't know what you guys are buying, but it's been a long time since I've bought an album for one song and hated the rest, have you heard of listening instore before hand, or buying CD singles where possible?

David Pennybaker · From: Conroe, TX USA

Tom,

Much to my surprise, I didn't find any verbage on the lyric sheets to the soundtracks. I could've sworn there was some there.

Anyway, their website addresses some of the concerns:
http://www.soundchoice.com/faq

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The Unofficial Photographer of The Wilkinsons

David Pennybaker · From: Conroe, TX USA

Somebody sent me this link just the other day, and quoted this particular artist, Courtney Love:
http://www.napster.com/speakout/artists.html

quote:
"Stealing our copyright provisions in the dead of night when no-one is looking is piracy. It's not piracy when kids swap music over the Internet using Napster. There were one billion downloads last year but music sales are way up, so how is Napster hurting the music industry? It's not. The only people who are scared of Napster are the people who have filler on their albums and are scared that if people hear more than one single they're not going to buy the album."

-- Courtney Love, NME, 6/29/2000

That kind of "logic" just blows me away. I'm not sure whether to laugh at Courtney, or to be irate, or to feel pity for her. She seems to confuse a couple of issues.

First, I'll have to assume her comments about 'stealing our copyright provisions' refers to record companies. Well, Courtney, nobody made you sign away any of your rights. You did that of your own accord. It has no bearing on the Napster issue whatsoever.

FWIW, I met an artist the other day ( Martin Sexon -- http://www.martinsexton.com ) who appears to have retained at least some rights. I asked specifically about how he was able to allow people to record his concerts (it's somewhere on his website that he states this). His response was that this was his choice, and a stipulation he made before signing the deal with Atlantic Records.

Secondly, she makes the comment that there were 1 billion downloads last year on Napster, yet sales were up, so how cold Napster be hurting the industry? I don't suppose she ever thought that sales might have risen MORE without as many Napster downloads.

Her third comment is just ridiculous. There are plenty of reasons to be concerned about the proliferation of a "service" like Napster by artists and record companies alike. Whether or not there's "fluff" on an album.

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The Unofficial Photographer of The Wilkinsons

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