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By KEN PAULSON
First Amendment Center
Nashville’s Craig Carothers is a singer-songwriter whose livelihood depends on concerts and CD sales. Yet sometimes, his biggest fans make that job tougher.
“I’ve had the experience more than once of having someone come up to me and — completely pure of heart — excitedly tell me they bought copies of my CDs when I was last in town and they enjoyed them so much they made copies for 15 or so of their friends,” said Carothers.
There goes the revenue stream. The unauthorized copying and downloading of music has been a hot topic since the 1999 launch of Napster, the peer-to-peer file-sharing service, and neither prosecution nor legislation has meaningfully stemmed the tide.
The failure of the Stop Online Piracy Act and a companion anti-piracy bill months ago knocked the entertainment industry back on its heels, raising questions about whether Congress has the political will to pass legislation.
Virtually every entertainment and media company has been buffeted by the digital revolution, but the music industry was the first to see major economic consequences and a dramatic shift in the habits of a new generation.
Despite growth in iTunes and other digital sales, many young people continue to see “free” as the appropriate price tag on music.
Column sets off debate
That was illustrated by the online debate ignited in June by an intern at National Public Radio’s “All Songs Considered.” In a column titled “I Never Owned Any Music to Begin With,” Emily White admitted that she has more than 11,000 songs in her iTunes library yet has only bought 15 CDs in her lifetime.
“I’ve come to realize the gravity of what file-sharing means to musicians I love,” she wrote. “I can’t support them with concert tickets and T-shirts alone, but I honestly don’t think my peers and I will ever pay for albums.”
There was a swift backlash on the Web, where David Lowery, of the bands Camper Van
Beethoven and Cracker, gently chided White: “You must live with the moral and ethical choice that you are making to not pay artists. And artists won’t be paid.”
Predictably, that column ignited its own backlash, including this less-gentle retort to Lowery from Gang of Four bassist Dave Allen: “The Internet doesn’t give a damn about musicians or your mediocre band.”
Noah Webster would not have been amused. Primarily known for his early and influential dictionary, Webster campaigned in the 1780s for copyright laws to protect American authors from theft of their content by printers. The printers of the 1780s were not large corporations. They were small shops that made their living largely by stealing the content of books published in Europe. Webster wanted to make sure his work would not be published without compensation.
Sept. 5 marks the 225th anniversary of the drafting of the Constitution’s copyright clause.
Advocates argued that ensuring authors were paid would encourage literary arts, lead to a body of truly American literature, unify the nation and demonstrate that the U.S. could be a leader in creativity. This notion of building a haven for creative people was so important that it was ratified as part of the Constitution in 1789, two years before ratification of the First Amendment, which gave us freedom of expression.
Two key principles
In a two-year span, this nation adopted two major, interlacing principles: Americans were free to write whatever they wanted and had every right to be compensated for their work.
The First Amendment encouraged creativity, and the copyright clause guaranteed compensation.
So often, the debate over illegal downloading focuses on technology. Those who defend the unauthorized sharing of music say that critics are living in the past and had better get used to the new reality. That new reality is taking a toll.
“Over the past decade, America has lost a staggering number of professional songwriters and composers, primarily due to the impact of illegal music downloading,” says Bart Herbison, executive director of the National Songwriters Association. “Those that remain in the profession are struggling to earn even a minimal income.”
Rutgers law professor Stuart Green argued in The New York Times recently that we’re framing unauthorized downloading in the wrong way.
“People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors,” Green wrote. “But framing illegal downloading as a form of stealing doesn’t, and probably never will, work.”
Fair enough. The recording industry’s attempt to prosecute individuals was a public relations fiasco. But the fact remains that the original justification for copyright law — the flowering of a creative community — is being undermined by those who won’t pay for the music they download.
Most illegally downloaded songs come from major stars and labels, but the food chain surrounding major artists includes songwriters, producers and musicians who are trying to get by in a ravaged industry.
Unauthorized downloading is a global challenge, and no one nation will provide the solution, but America’s origins suggest we should care more than most.
In the end, this is not about business models or emerging technology. It’s about living up to the promise we made to Webster and the first generation of Americans who believed that art should be free, but not necessarily free of charge.
Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.