[This is a compilation of a discussion on the nettime mailinglist which started with a posting by McKenzie Wark, who forwarded an article by Chris Byron, dd. July 23, 2000. The thread was edited by Geert Lovink.]
July 23, 2000|3:59 AM
Terror in Tune-Town: Music Giants Flail Before Download Upstarts
by Christopher Byron Bloomberg News
Would you like to know what the current fracas regarding "music over the Internet" is all about, I mean really all about? Its not about some gun-toting rap singer getting to fancy himself up in a suit and tie (or the rappers equivalent thereof) and sound off about copyright infringement issues. Its not about the zero-to-hero overnight fame of cyberspace teen wonder Shawn Fanning, who wrote the software that allows you to download enough room-emptying rock music off the Web, for free, to make the whole of Pakistan go deaf in two minutes.
No, what this fight is really all about is whether the Internet is going to turn the outpourings of the U.S. infotainment industry into a commodity, with the result that its operating margins will shrivel up and disappear. One of the companies caught in this fight, San Diego-based MP3.com Inc.has already seen its stock plunge 87 percent, to about $14 a share, from a high of $105 on its first day of trading one year ago this week. The shares are now trading about 50 percent below their initial public offering price of $28 on July 21, 1999. But the long-term prospects for the company are actually quite bright.
The real losers in this fight over the long term are likely to be media conglomerates like Walt Disney Company, Sony Corporation, and AOL Time Warner Inc. (pending their merger), which are currently grinding MP3.com to a pulp. They stand to lose big time whether MP3.com survives or not. That is because their businesses, and their stock prices, depend on the fat operating margins they have enjoyed from selling intellectual property as opposed to tangible commodities. Now, as it has done with everything from books to consumer software, automobiles, stocks and home loans, the growth of the Internet threatens to undermine and destroy the operating margins of developers and distributors of "content" as well.
In other words, bye-bye to the eight-digit deals that have made people like Bruce Willis and Tom Cruise rich beyond reason simply for knowing how to smirk. Bye-bye to the more than $22 million that Time Warner Inc. chairman and chief executive Gerald Levin bagged in salary, bonus and stock for running his company last year. Bye-bye to the well, you get the idea.
In other words, folks, what's at issue in this fight isn't simply property rights to the musical eruptions of rock groups like Metallica. What's at issue in this case is whether the people in collective control of the American infotainment industry will continue to wallow in the King Farouk lifestyle to which their oligopolistic control over the media distribution systems have accustomed them. What they face, thanks to the Internet, is a future about as appealing, over the long haul, as that enjoyed by salaried physicians in this era of HMOs and managed health care and the "music over the Internet" fight is where these latter-day Romanovs have chosen to make their stand against that ultimate day of reckoning.
I predict that, in the end, they will fail and the rabble will storm the Winter Palace. I think there is no way no breast work of copyright laws or anything else that will halt the advance of technologies ability to distribute information to wider and wider audiences at lower and lower cost until, in the end, anyone will be able to distribute essentially anything, for the functional equivalent of no cost at all at which point, copyright laws will have about as much deterrent effect as the federal law that you apparently break by ripping the tag off a mattress.
If you haven't been following the fight, its really been quite an amusing spectacle. It began when this 19-year-old college kid young Master Fanning got real twisted over the fact that he and his friends couldn't find their favorite music on the Web. So Master Fanning sat down and wrote himself a little program of computer code that allows anyone who already has some music stored digitally on his home computer to dial in to Master Fannings machine and register the music. Then, anyone wanting to download a song can query the Fanning computer to find out if it is registered on the network and, if so, what computer is storing it. Then the Fanning computer will simply route you through to the computer where the song you want is stored and you can download it for free.
Mr. Fanning started a company called Napster Inc. (apparently because he's got nappy hair), and it took off. Meanwhile, a company called MP3.com, which had gone into business to utilize a popular software program for compressing audio files, had also been giving away music for free from its Web site. And other companies had begun gearing up to do versions of the same thing.
Seeing all this, the music industry freaked out and began filing all sorts of lawsuits against MP3.com and San Mateo, Calif. based Napster, claiming they were violating the industries copyrights on the material. This in turn led to the recent spectacle of a days worth of hearings before the Senate Judiciary Committee in Washington, in which fans of Lars Ulrich, of the rock band Metallica, crowded the corridors of the Hart Senate Building, hoping to catch a glimpse of Mr. Ulrich as he opined at the hearing that the Napster phenomenon, if not brought to heel, would, in effect, reduce him to penury.
Politically Incorrect host Bill Maher summed up the testimony this way: "Lars Ulrich, the drummer for Metallica, said downloading music should not be allowed because it would bankrupt musicians, and that, of course, is the job of drugs and agents."
On the face of it, the music industry has plenty to be worried about. The whole business is basically under the thumb of a mere handful of media giants like Bertelsmann A.G. (the RCA and Arista labels), Time Warner Inc. (the Warner, Atlantic and Elektra labels) and Seagram Company, which owns Universal Music and the Island, Mercury and Motown labels, to name but a few.
This entire Seagram music operation was put together by Edgar Bronfman Jr. when he acquired Polygram N.V. in 1998, and began gutting the Seagram liquor business to establish the company as a leading player in "media content." The music business accounts for 40 percent of the company's revenue and 53 percent of its operating income, if you don't include non-cash charges like depreciation and amortization.
What's more, if you were to go even higher up Seagram's income statement, you'd find that the music segment probably accounts for an even greater percentage of the companies gross profit. Reason? The next-most-profitable business Seagram has is its liquor operation, and with that segment the company actually has to acquire the grain and other raw materials it transforms into booze. With the music segment, its cost of goods sold are nil, which is why the company can pay staggering sums to recording artists like Shania Twain, Sheryl Crow and, of course, Metallica.
Last month, MP3.com reached a licensing settlement with two of these biggies Warner Music Group and the BMG Entertainment division of Bertelsmann. None of the parties have disclosed the actual terms, but press reports which MP3.com does not disavow say that MP3.com will pay a total of $35 million to the two companies as a kind of make-good to get things up to even.
Published reports further say that MP3.com agreed to pay each company 1.5 cents for each music track stored on the MP3.com computer for its users. Each time a user accesses the track and listens to it, MP3.com has further agreed to pay the two companies a third of a cent. But no one can seriously believe this will change anything. All anyone has to do is access an MP3.com file once, copy it, and suddenly its everywhere. My own teenage daughter says none of her friends have bought CDs in months, and that everyone now simply shares files back and forth on the Web.
When cassette tape recorders first began to proliferate, the music industry went bonkers over the "copyright threat" those devices represented. Then came the VCR, and the motion-picture industry raised the same squealing objections. But these technologies never threatened the media conglomerates in the first place, since there was no efficient way for someone who made a tape of some song or, let us say, cablecast movie on his home TV to redistribute the material to anyone else.
The Internet has now changed all that, and as broadband technology takes hold in the market, the threat could be fatal. In the same way that MP3.com and Napster are now trafficking in compressed audio files, other companies will soon be springing up to distribute compressed video files, instantly undermining the ability of the movie studios to sell theatrical-release films to videocassette outfits like Blockbuster Entertainment, to pay-TV channels like ShowTime and HBO, and lastly to broadcast TV. These are the revenue streams that help the studios recoup the costs of nine-digit blow-everything-up monstrosities like Mission: Impossible 2.
As for MP3.com, well, this company may prove to be a more enduring thorn in the side of the media giants than they now appreciate. The company went public a year ago in a Credit Suisse First Boston underwritten deal that raised $360.4 million in net proceeds. As of March 31, the company had roughly $224 million of it left. But the company also showed $145 million of marketable securities and $9 million of short-term investments, indicating a war chest of maybe $375 million. And the most important thing is that the company's operating-cash burn-rate is running at only about $3 million per quarter, suggesting that the outfit is good to go for maybe another 30 years at its current pace. In short, this is one company that isn't going out of business anytime soon, and with a third of a billion dollars at the ready, it ought to be able to dragoon every lawyer in Washington to its cause as this fight continues.
With 68 million shares outstanding, and $400 million of stockholder equity on its books, the company's shares sell for little more than twice book value, compared to 11 times book value for an outfit like Time Warner, whose book value assets are the meal on which MP3.com, Napster and the others are starting to feast. In other words, over the long term, MP3.com looks to have a better shot at rising than falling further, whereas the media conglomerates may have nowhere to go but down.
You can reach me by e-mail at: cbyron@optonline.net.
Christopher Byron is a columnist for Bloomberg News.
[from The New York Observer]
http://www.observer.com/pages/envelope.htmhttp://www.observer.com/pages/envelope.htm
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From: Eric Miller <eric@OAKTREE.com>
To: Nettime List <nettime-l@bbs.thing.net>
Subject: RE: <nettime> Terror in Tune Town
Date: Mon, 24 Jul 2000 12:26:22 -0700
hi all:
Everyone likes the idea of stiffing the fat cats at the top of the distribution pyramid. To wit, from this article: "What's at issue in this case is whether the people in collective control of the American infotainment industry will continue to wallow in the King Farouk lifestyle to which their oligopolistic control over the media distribution systems have accustomed them." Sure, agreed. No one disputes the inequities inherent in the present system.
But what about the artists?
Who, after all, really gets screwed when no one is able to make a living from their art? The lawyers and MBAs who run the record companies won't have a problem getting another job. But the musicians and performing artists will see a hard living become even harder when a primary source of support is removed via widespread theft. Indirectly, the celebration over the liberation of artistic intellectual property functions to legitimize theft. Because what Napster does is theft. You are taking an artist's commodity/product and not compensating them for it. And the argument that Napster represents an alternative distribution channel is weak at best. First, you don't earn money from it. Second, you have to spend money to promote your work so that it doesn't get lost in the tens of thousands of other works out there. Third, everyone is refusing to accept any format/plan that involves payment. So it's a lose/lose/lose prospect for the artist in the long run. Even if you get artistic exposure or publicity from the Web, you still don't have any viable way to support yourself.
Fine, screw the record companies. They've force-fed us banality and dreck for way too long, while making a killing doing it. But we have to stop pretending that every artist is like Metallica and already making millions. The vast majority are struggling to make their voices heard, and we aren't doing them any favors by removing their ability to make a living doing it.
Eric
| Eric Miller
| Senior Designer/New Media
| OakTree.com Web Technology and Development
| 503.517.3800
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Date: Tue, 25 Jul 2000 11:43:38 -0400
From: t byfield tbyfield@panix.com
what napster does *isn't* theft: to lift a line from the National Rifle Association, napster doesn't 'steal' music--people do.
but do they? most of the rhetoric surrounding MP3s assumes that people are downloading songs they never paid for. that's certainly true for some segment of napster traffic, but it's not universally true at all, and if arguments about napster etc are going to valid, they really ought to account for those messy exceptions--otherwise we're just arguing theology. here's an exception: i've been reconstructing parts of my record collection in MP3 format. i *own* that music, and have a small wall of end-user licenses to it in the form of vinyl disks to prove it. (there are lots of corollaries to this: for example, if i were to rip MP3s from a scratched-up record, i could *sell* those MP3s if, with them, i transferred physical possession of the originating vinyl and retained no copy for myself.)
the music industry response to this would likely be that there's a substantial difference between analog vinyl recordings and digital CD recordings, in that the latter required some amount--in some cases, a substantial amount--of remastering: ergo, the MP3s i have are 'stolen.'
fine. now, is *that* form of 'theft' the same as a case in which someone has downloaded MP3s of something s/he doesn't own in vinyl form? again, the music industry would probably answer: yes. but the very underpinning of their claims against napster--basically, that people are 'consuming' without 'paying'--falls apart on this point. in one case, we have a consumer who *did* pay, in the other a consumer who *didn't* pay, yet (if my guesses as to what they would argue are correct) both are 'theft.' what we're watching is a process in which the vague assumptions of a prior world--for example, what 'rights' one obtained in purchasing a vinyl record--are being 'unbundled' over time and treated as discrete options to be bought and sold at a higher level.
when it came to turning singles into albums and vice versa, or turning analog into digital, the music industry was pleased to be silent on these questions: everything was the same, and, oh, look, your contract doesn't say *anything* about you having rights to the *digital* versions of this music, so the revenues devolve to *us*. ah, but when it comes to MP3s, well, that's different--that's *theft*. and what of the workers in vinyl record plants who were put out work when the industry made the switch to CDs? did the industry stand on the kind of 'principle' that posh notions like 'intellectual property' would seem to suggest?
'intellectual property' is really little more than the bourgeoisie's attempt to distinguish itself from the working classes by claiming that there's a qualitative difference between its own labors and that of its economic lessers. but that's not where things are headed, historically speaking--quite the opposite.
the issue isn't at all what the music industry is making it out to be. they want exclusive control over the power to transform ONE thing into MANY things--to effect the pseudo-magical transformation in which a singular recording becomes a plurality of objects. But digital technologies, to recite the old saw, put the power to do that into the hands of the many, and the many are exercising their ability to do it. but with one key difference: now it's a question of plurality compounding itself in an exponential increase. economies of scale are coming home to roost. and what you say about everyone refusing to deal with an format or plan that involves payment. that's just not true: lots of people are trying, and then there's the cypherpunkish notion of reputation markets, which, in any case, were the logic that governed mass manufacture economies.
cheers,
t
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Date: Wed, 26 Jul 2000 02:17:36 +1000 (EST)
From: McKenzie Wark <mwark@laurel.ocs.mq.edu.au>
Re: tbyfield@panix.com
Marx talks about the alienation of the worker's property -- the worker's labour. But its still property. Is the goal to abolish the property, or its alienation? Not the same thing. My concern is that if you can't 'propertise' the information, then all power resides with whoever owns the vector. The pipe -- the part that is still physical and material property -- will be where the power lies. The pipe guys will be king.
This surely is the other part of the corporate bet hedging that's been going on for 10 years now. Besides securing stocks and flows of information, the biggies have been surfing up their grasp of the vectors. If copyright law is strong, they win because they won the content. If copyright law is weak, they win, because they own the vector.
k
__________________________________________
"We no longer have roots, we have aerials."
http://www.mcs.mq.edu.au/~mwark
-- McKenzie Wark
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Date: Tue, 25 Jul 2000 13:12:40 -0400
From: t byfield <tbyfield@panix.com>
mwark@laurel.ocs.mq.edu.au wrote:
> The pipe guys will be king.
bingo.
with the proviso that 'the pipe guys' are a very heterogeneous lot with explicitly conflicting interests.
this was less so under a PSTN (public switched telephone network) regime, because they were 'smart' networks, in the sense that the devices at the core determined what went where, when, and how. as a result, there are certain common 'class' interests in the PSTN world, which is why the ITU is such a force to be reckoned with. but the net is a 'dumb' network: its primary design goal is to ensure that packets are delivered point to point, so 'intelligence' is pushed to devices on the periphery. thus there are the backbone providers, the routing registries, the naming registries, the caching providers, ISPs of various shapes and sizes, decentralized services, redundant services, and so on and so forth. these forces don't see eye to eye *at all*.
that's why ICANN is so bloody important: its goal is to transform this mass into an orderly regime by enmeshing the component forces in a rigid contractual framework. ICANN's justification is that it seeks to guarantee the 'stability' of the net; but that 'stability' disguises the possibility of the power to force divergent interests to cooperate in, for example, the suppression of certain kinds of traffic. if they were farther along in this program, napster would be a candidate for such suppression; but more advances services like freenet, which will take longer to mature and implement, will very likely confront a more homogeneous and organized regime.
in that regard, you should think very carefully about the *generic* implications of opposition to something like napster, on whatever basis. if 'artists' rights' are invoked to suppress napster now, that will serve as a precedent for suppressing other services later on, on the basis of some other purported violation. and it's quite clear how 'intellectual property' could come to serve as a terminally generic justification for suppressing various kinds of traffic: as we have already seen in the domain-name fights under ICANN's UDRP, all it takes is a single complainant to torpedo *everything* transacted or made available under a domain. we've seen this happen in other ways, with ECN servers being confiscated in Italy, with thing.net's webserver being knocked off the net by etoys, with altern.org in France just now, with Steve Jackson games years ago--the list goes on and on. under the circumstances, shaky arguments about how artists aren't getting paid because of napster (they weren't getting paid anyway) or photocopies handouts playing an instrumental role in perpetuating the marginalization of intellectual labor...they don't convince.
cheers,
t
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Date: Tue, 25 Jul 2000 14:07:32 -0500
From: Jeffrey Fisher <jfisher@igc.org>
In response to McKenzie Wark:
Marx says workers under capitalism are alienated from the fruits of their labor, not their property. one presumes he does not consider these to be the same thing, particularly given that he calls for the abolition of private property.
From the Communist Manifesto:
"You are horrified at our intending to do away with private property. But in your existing society, private property is already done away with for nine-tenths of the population; its existence for the few is solely due to its non-existence in the hands of those nine-tenths. You reproach us, therefore, with intending to do away with a form of property, the necessary condition for whose existence is the non-existence of any property for the immense majority of society.
"In one word, you reproach us with intending to do away with your property. Precisely so; that is just what we intend."
-----
From: Eric Miller <eric@OAKTREE.com>
Date: Tue, 25 Jul 2000 11:21:38 -0700
Responding to Ted Byfield (tbyfield@panix.com):
hmm...interesting points you've made. I almost completely disagree, but
they are interesting points.
In the end, I don't think this argument can hold up. I think it partially boils down to your statement about IP rights being a creation of the bourgeoisie...I just can't buy that. (bad pun intended) Music/film/art is the product of their work, of their labor, of their emotional and financial investment. I don't buy any argument that legitimizes self-serving behavior by framing it as a class struggle issue. Taking content without paying for it certainly qualifies in my book. Doesn't matter if you're a bona-fide blue-collar member of the proletariat complete with union card and oppressive bourgeoisie overlords...if you take what doesn't belong to you, you're stealing.
Same with the concept of Napster not being responsible for theft. By extension, the NRA argument doesn't do too well when you look at the situation it creates. Sure, inanimate guns don't kill people, but it sure makes it a hell of a lot easier when you create an armed populace and a culture of irresponsible permissiveness cloaked under the veil of "personal liberties." Key word there is irresponsible. If you give people the tools to steal, and tell them it's OK through convoluted arguments that say "what costs the artists/companies money and time, you can have for free!" they're going to swipe it without compunction. Not exactly a warm n' fuzzy thing to do to the industry, artists included.
I'm sorry, but the bottom line is IF YOU DIDN'T PAY FOR IT, IT ISN'T YOURS. Artists invest their lives, and record companies invest money in their product. You can't justify or rationalize away the fact that widespread _multipoint_ distribution of content without a quid pro quo is by definition, distribution of stolen property. Intellectual property. It's not about format, it's not about archiving your CDs for portability, it's not about making personal copies...it's about the legitimization of a system that allows people to take what doesn't belong to them. It's not open source or legitimately free content if the content owner (i.e., the artists and record companies) doesn't give explicit permission for free repeated redistribution.
There are grey areas. Used CDs, for example...only the retailer and the end-user benefits from that, and it does represent lost sales for the record companies and artists. But there is the critical difference in that there is only ONE copy...the person who originally owned the CD no longer has access to the music. it's a one-to-one transaction. You can't say the same for a song you make available via Napster...if ten people download your Cibo Matto album, that's eleven copies in existence. Yours, and theirs. And while many people may eventually buy the album and compensate the artist, many will be content to just play it back through their computer/stereo/CD-ROM/MP3 player. That's theft.
On another note, Jeff Carey (quite correctly) commented that most artists don't make money off their recordings, and that touring is a bigger source of revenue. True, but that doesn't really change my position. I don't see that "well, they can still make money this way" justifies the "liberated content" hijacking of another potential revenue source. Okay, I actually should work while I'm at work, but this topic just bothers me. In the end, if no one can pursue their art without any means of financial support, then artistic diversity will suffer.
Eric
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Date: Wed, 26 Jul 2000 03:44:37 +1000 (EST)
From: McKenzie Wark <mwark@laurel.ocs.mq.edu.au>
Re: tbyfield@panix.com
Very interesting, ted. Seems to me we're back in the great English conundrum of liberty and property. How John Locke must be chortling in his grave. I'm skeptical about accepting a weakening of property rights in the name of liberty, when it is *distribution* of property (among claimants, among types of property that have to be negotiated) that is the grounds for securing liberty in the first place. Two extremes are to be avoided: complete lack of protection of intellectual property rights, as was the case until English and Scottish common law recognized intellectual property in the 18th century; but also unlimited property right -- the early versions set very limited time periods.
Yes, objections to liberal use of the intellectual property of others may be used to shut down free speech. I can see the danger there. But it seems to me there is also a danger at the other end. Vigorous defense of liberal use of others' property in the name of free speech undermines the distribution of property on which free speech rests in the first place. If one's (limited) intellectual property rights can't be protected, the pipe guys win. One has no source of income from what one creates and can claim as one's property. One has no independence of means with which to participate in civil society.
k
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Date: Tue, 25 Jul 2000 17:31:42 -0400
From: Bram Dov Abramson <babramson@telegeography.com>
Ted Byfield wrote:
>the net is a 'dumb' network: its primary design goal is to ensure that packets are delivered point >to point, so 'intelligence' is pushed to devices on the periphery.
Doubt it. The Internet works great as a fairly dumb network when the Internet's sole goal is to push modest amounts of ascii & download-now-use-later data files to various people. Which is fine by me, but many billions of dollars seem to have been mobilized to turn the Internet into something else.
Which means that the PSTN / IP difference is not so much the architecture (romanticized old world / brave new world narratives aside). It's what's being pushed down the pipes, on the one hand, and the degree of vertical consolidation among the different slices of architecture which do the pushing, otoh. And those feed into one another: the more people try and push audiovisual stuff down pipes (aka "rich content", "broadband media", "bitcasting", even ... "broadcasting", once), the more IP and SS7 (the latest version of PSTN; yes, it's packet switched) look strangely similar, and the more vertical integration takes place (in lieu of "slower" decision_by_committee) as a way of making that architectural "innovation" happen:
>thus there are the backbone providers
IP: backbone providers (and iisps = international isps)
PSTN: international carriers
IP:
>the routing registries, the naming registries,
PSTN/SS7: Service Control Point, Signal Transfer Point...
IP:
>the caching providers
PSTN: no equivalent, cause audiotex never caught on big enough (with an important exxxception). On the other hand calling caching an "edge" or a "core" function is largely semantic within this kind of discussion. The cache and multicast boxes don't sit at the user's end, they sit inside the network. Content the "end user" wants to push onto the Internet is subject to the routing policies of those boxes. If looking for a political economy spin or choke point, cf the various agreements between Akamai and various backbone providers, for example; then note the revenue streams flowing from content providers to caching providers.
>ISPs of various shapes and sizes
This is more and more true of the PSTN too. Telephony's institutional alignment is an artefact bound up far more in market and regulatory decisions than the network architecture used to build it.
>these forces don't see eye to eye *at all*.
Here's where we agree a bit. There is a lot more churn in the IP (here, that's Internet Protocol) world than the PSTN has had (see above), and that's a good thing. For example the way the naming/routing registries on the IP side are *comparatively* divorced from the backbone providers. Regulators looking for anti-competitive and anti-trust flags -- and, say, sideline observers worried about monopolies of knowledge infrastructure (to gloss Innis) -- would probably do well to look for a layered approach that makes sure things stay this away, ie that vertical consolidation doesn't allow IP players to yoke together vertical layers in much the way that the PSTN world does.
So to bring this back to the other kind of IP: sounds like Ken Wark is arguing that if content producers don't "own" the content, then the distributors will; that Ted Byfield is saying that that's a good thing, because the means of distribution are so fragmented that nobody can own that content at all (maybe the Publius project should be thought of as a by-design version of that, http://www.cs.nyu.edu/~waldman/publius/). I don't know enough to say either way, only that the economic+technical conditions Ted is describing won't hang around forever -- at least not on their own -- and that that might be a source of concern & intervention.
cheers
Bram
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Date: Wed, 26 Jul 2000 13:17:02 +1000
From: dteh <dteh@arthist.usyd.edu.au>
ken and ted's exchanges don't beg a clarification of that property-labour distinction. the point made (in the "poverty of philosophy") is that the underlying differentiation between the fruits of manual labour and those of mental labour is dissolving, a point confirmed in ample measure as early as the 1940s and later reiterated by Baudrillard. (yet i am befuddled by how sluggishly Marxists are renovating Marx's own approach to this issue when it is so pressing today)
but i find Eric's approach to all this problematic. i will try to be direct so please forgive the quotations.
"if you take what doesn't belong to you, you're stealing."
the implications of this sort of language are a wholesale reinforcement of the existing copyright regime. in an era where the prevailing commercial approach to intellectual property is the 'mad-grab, attach it to everything you can' attitude, the attributes of cultural products, some very abstract and elusive, are one by one falling into the scope of 'property' protection. trademarks and copyright are currently being extended to all sorts of components of these products, from the style of a brushstroke, to the shape of a boiled candy.
i think there are more "grey areas" than you have permitted here. in the 1980s the art world roundly validated (even valorized) appropriation art, parallel with popular music's development of sampling. in almost every case, the law's flailing, fumbling attempts to draw the line between constructive appropriation and theft have resulted in a wobbly philosophical scribble. just ask an artist to draw a line between 'influence' and 'inspiration'. hopeless.
in fact, artists have always had to tread this line. the best of them have tended to ignore it, though. now there's certainly a difference between sampling some Metallica and distributing copies of it, but the moral issues are welded together: can we really say that a home-listener's 'use' of a Metallica song is any more or less significant at law than a DJ's? DJs have house parties and so do ordinary fans. both can have door-charges. i also think the NRA analogy is useless - the difference is that unfettered distribution of mp3s does not lead to thousands of homicides.
i find your claim that "if you didn't pay for it, it isn't yours" more than a little troublesome. try telling that to Picasso when he borrows one of Cézanne's figures for his Demoiselles. the more you investigate the circulation of artistic products, the more you find that "it" was never really "yours" at all, and that there was never a time when "it" was always paid for by every user. there was, however, a time when "it" was never paid for by any user.
couldn't it be that the concept of personal property (intellectual or real) no less that the concept of property rights, (or "artistic diversity" for that matter) need to undergo some fundamental changes in order to catch up with the new distributive infrastructure that doesn't seem to be doing them justice? your assertion that "no-one can pursue their art without any means of financial support" oversimplifies the issue. firstly, there have always been artists that supported their practice with income from other work or from another's patronage; secondly, why shouldn't artists (like every other sort of producer) have to develop new products, or new ways of taking their products to market, when the conditions of distribution change around them? and couldn't this be an exciting source of formal and/or philosophical progress on the level of the artwork itself?
the difficult renegotiations of these concepts will not, i believe, be well served by the bolstering of a seemingly outdated (and increasingly permeable) set of juridical parameters. for artists, the days in which individual(s) exert a clearly delineated and legally binding control over what "belongs" to them, and its use by others, are over. they will have to find new ways of securing their place in the market, probably by forming cooperative links with other producers, groups of consumers, other professionals, and even those "pipe guys" who we have just decided will win out.
dave teh
dteh@arthist.usyd.edu.au
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