Skip navigation

The Music Industry has experienced a drastic evolutionary change in recent history, with the rise of the Internet and in particular Web 2.0. The developments have markedly been in relation to the consumption and production of music. Henry Jenkins believes that it is the cultural practices being adopted by music consumers and creators which is the underlying element in understanding our current “media landscape” (Jenkins 2006).  It is, however, important to understand that it is the technologies themselves which began to shape the behaviours of those involved in the Music Industry. These technological advancements have created new and simpler connectivity between makers and consumers of music. Without digital technology and the web, the ease by which we access music would otherwise have altered little. It is because these technologies have grown rapidly and are readily accessible that they have been so easily adopted by individuals. It is this phenomenon that has shaped “our current moment in media transition (Jenkins 2006).” With the freedom to access and create music, a minefield of legal consequences has risen in its path, namely Copyright.

So how did this situation arise?

The Music Business and Recording Industry E-Book (Hull 2010, 30 & 31) refers to the Music Industry moving from an ‘Agricultural Age’ around a millennium ago, to the Industrial Age in the 1800s and finally the Information Age/Digital Age in recent times. The author explains that these periods held key changes in the music industry. Music, originally, was played by troubadours, court musicians, jongleurs – the original live music act.  Lovers of music had to be in the same arena to enjoy the sound and be involved with the performance. In the Industrial Age, music began to be made more readily available to lovers of music via products such as sheet music, records and mass media.  Amateur musicians could purchase their favourite music in consumable media formats and perform for their own pleasure or personal development. Then, in the Information Age/Digital Age in which we are still living, music has been transformed into content which is digitally delivered through technology such as the Internet and mobile phones.  Even though music has been shared through various mediums over time, it is, however, only relatively recently that music has been shared in a reproduced format. It is the evolution of how music is created and shared that has initiated the illegal exchange of music between people.

Humans have always created music. Instruments have been designed and played over centuries. Today, music can be created without instruments. The advent of digital audio workstations, such as Pro Tools, Logic and Reason, have brought music to the people – all people whether they are musical artists or not.  This development has enabled music enthusiasts to record and remix music in the comfort of their own homes. In past times, musicians had to save for a session in the recording studio. The ability for musicians to have their music recorded professionally was a fairly rare and highly expensive endeavour. These days, those with some spare money enthusiasts and would be pop idols are able to purchase recording devices and programs and produce similar results as recordings done in a professional recording studio.

Another significant invention that enabled people to produce home recordings was the “Musical Instrument Digital Interface in 1981 or more commonly referred to as MIDI which is a communication protocol” (Homer 2009, pp91) that enables compatible devices, such as MIDI keyboards, to be linked with computers. As a result of these programs and inventions, “there are more people today than ever before who are involved in creating music” Geronimo (2010). Some sources believe this means “the music industry is being flooded with [low quality] music,” (Chris Standring) and has resulted in the music industry becoming saturated with material. This has made it more difficult for Artist & Repertoire agents to sift through the vast sea of what is considered largely “mediocre music” (University of Washington 2010) to find what is marketable and worthwhile music. These amateur musicians have the capability to then market themselves on the Internet. This is being done without any legal guidance. For example, if their music is uploaded to Limewire, it then becomes available to the general population who are also using Limewire. Indiscriminate downloading of musical content automatically breaches copyright.

The greatest negative consequence of music having become so widely and easily available to the general public is the rise in breaches of Copyright law. The illegal activity of unauthorized downloading of music was spawned by P2P sharing services such as Limewire and Frostwire and more recently, torrents. The premise underlying these programs was that music should be freely available to users. Inadvertently, copyright laws were being disregarded as users reveled in free access to their favourite tunes. According to Copyright law, “it is illegal to download or share copyrighted materials such as music of movies without the permission of the copyright owner” (Ashley Kobi 2011), and any party who assists others in committing this crime is also infringing Copyright law. The program first caught violating these laws was Napster (who was sued by A&M Records in 2001) and the most recent case of Copyright infringement by a P2P service was Limewire (who was sued on two separate occasions by Arista Records on one occasion and over thirty other music publishers on the second occasion (Thomas Brannen 2008, 8).

Both of these programs were accused of the same law infringements by their respective plaintiffs: “Users directly infringing the plaintiff’s copyright, liability for contributory infringement of the plaintiff’s copyright and liability for vicarious infringement of the plaintiff’s copyright” (Thomas Brannen 2008, 8/15). In their defense, Napster claimed they were a search engine and invoked the protection of the “1998 Digital Millenium Copyright Act” (Thomas Brannen 2008, 9), which supposedly protects “against liability for Copyright infringement for intermediaries or search engines” (Thomas Brannen 2008, 9/15), Napster also attempted to claim that users were “sampling music before making the decision to purchase the music” although neither of these defenses survived in court and Napster was “[liable] for US $26 million” (Thomas Brannen 2008, 12),   Limewire, on the other hand, claimed that none of the accusations could be proven without statistical evidence SCRIBD (2010, pp36). Although the Limewire case has not finished, there have been allegations made that Limewire is being sued for “US $75 trillion” (Chloe Albanesius, 2010).  Without having content filters or record labels as mediators in the process of downloading music, programs such as Limewire and Napster allowed music to “reach unprecedented levels of availability. From an institutional standpoint” (Woodworth 2004, pp3), Limewire and Napster transferred the responsibility to their users for not abiding by Copyright law. They should have, instead, of sought permission to share each of the individual songs that were made available on these P2P programs.

Copyright is not only being infringed in regards to illegal downloading platforms. Video, music and website remixing and mashups are part of the relatively new “remix culture”. This is where amateur music makers “are taking up the role of producers – to cut, paste, sample or jam with content in order to produce something which is distinctive of their own social and creative innovation” (O’Brien, Damien and Fitzgerald, Brian 2006, pp1).  However, in using others’ material in this manner means the new creator is breaching the “exclusive rights of the copyright owner” (O’Brien, Damien and Fitzgerald, Brian 2006, pp3) which include the “reproduction, copying, adaptation and performance” of the original work. The only legal way for these pieces of work to be used is by gaining permission from the original artist or if they are under a free use license such as Creative Commons. The Grey Album case study is an example of why Copyright laws are now outdated in today’s “current media landscape”, where sharing, remixing, mashing and collaborating are generally accepted practices in society.

One of the most controversial case studies involving remixing and the subsequent infringements of Copyright is Danger Mouse’s “Grey Album” saga. This piece of work combined the instrumentation from the Beatles’ White Album with the vocals from Jay Z’s Black Album. Initially Danger Mouse received a “cease and desist” letter from EMI/Capitol. However, when the album was rapidly spread through P2P services, both Danger Mouse and the people who were sharing the album on their websites were threatened to be sued as well (McLeod 2005, pp1). These threats led to an online protest against EMI/Capitol where over “150 websites hosted the album” (The Globe and Mail 2004), and made it available for free download on their respective sites. Although it can be argued that this new work was innovative and brought two separate artists together who would perhaps never perform on the same physical stage, from a legal perspective, the creation of the Grey Album was a criminal act.  It denied the original artists their due in both acknowledgement and financial gain via purchase of rights to their original music.

The original purpose of copyright was to “serve[d] twin roles as guarantees of economic property and moral propriety” (Meisel & Sullivan, Mark Rose 2002). That is, Copyright was created to protect the originating author’s innovations, their works which reflected their personality, creative ideas and overall intentions. Copyright law also gave creators authority over how their original work could be used in future. Copyright also aimed to ensure that an individual’s work was attributed solely to the original creator in order to prevent others from gaining financially if they used another author’s work. Copyright did not entertain or allow for development of technologies that would easily breach these intentions. The ease by which individuals could connect, mix, mash and link as well as the extent to which individuals participated in these acts was unprecedented. It is a case of the law not pre-empting the ramifications of technology. “It seems that litigation has been the most common form of regulation throughout the history of copyright” (Woodworth 2004, pp5) instead of anticipating changes in technology and society and creating laws accordingly.

The music and other creative industry’s efforts to manage Copyright and authorship issues have been demonstrated through the development of an organization called Creative Commons. Works that are using Creative Commons use the symbol CC instead of C for regularly copyrighted material. Their aim is to “expand the range of creative works available for others to build upon legally and to share” (Creative Commons). It also allows creative people to choose how they want their work to be shared and reused by others. For example there is a licence for attribution only, noncommercial use of works, a no derivatives licence and share alike licence. Each licence determines a different standard to which a particular work can be used from not being used at all to using the work on the condition that the work doesn’t gain financially. There are also licences that combine multiple of these standards. Although this concept is not yet being adopted by all creative people, it is a step in the right direction to enforce the law, but also understand the current status and function of creative industries, particularly the music industry.

It could be stated that technological advances throughout history have led to the increase in music creation by amateurs, however it was not until the Internet was invented and became widely used that Copyright became outdated. This was due to the abilities of web pages and associated programs to link with a community of computers and other technologies, which then resulted in the illegal distribution of creative works. These programs such as Limewire and Kazaa have suffered the consequences with large lawsuits being filed against them. The larger ability for people to access music has also led to the heightened appreciation for “remix culture” which is another concept which unfortunately also infringes copyright laws. If copyright laws are being infringed for multiple various reasons, the question must be asked why these laws aren’t being updated according to new technologies and advances and how exactly these issues will be approached in the future. I believe that it is the changes and advances in technology which has led to both an increase in the creation of music, but also a rise in copyright infringements. It could therefore be determined that the rise in technological advancements has had both positive and negative effects on the functionality and status of the music industry as a whole.

Bibliography

1.    Henry Jenkins (2006) “Eight Traits of the New Media Landscape”
http://henryjenkins.org/2006/11/eight_traits_of_the_new_media.html

2.    Geoffrey Hull (2010), Music Business and Recording Industry E-Book, “Understanding Music and Recording Business”, Hoboken: Routledge Publishing, ProQuest, pp30 & 31

3.    Matthew Homer (2009), “Beyond the Studio: The Impact of Home Recording Technologies on Music Creation and Consumption”, pp 91

4.    Geronimo (2010), SOUND SECTOR “Rant: Saturation, Is This Music Industry Getting Saturated”, http://soundsector.net/2010/03/19/rant-saturation-is-this-music-industry-getting-saturated/

5.    Chris Standring (Date Unknown) Music Biz Academy.com “Record Labels: Make Them Come to You”
http://www.musicbizacademy.com/articles/cs_labels2u.htm

6.    University of Washington (2010) “Peer to Peer File-Sharing and Copyright Infringement” – “What is the Copyright Issue?” http://www.washington.edu/students/gencat/policy/p2pshare.html#q2

7.     Ashley Kobi (2011), American University Intellectual Property Brief, “Limewire and Music Publishers Settle Copyright Case, Trial on Damages in Similar Case Filed by Record Companies Still Slated to Go Forward”, http://www.ipbrief.net/2011/03/11/limewire-and-music-publishers-settle-copyright-case-trial-on-damages-in-similar-case-filed-by-record-companies-still-slated-to-go-forward/

8.    Thomas Brannen (2008), Wiz IQ, “Case 4.1 – The Napster Case”, “Claims against Napster – Slide 8, 9 and 12/12 (Powerpoint) http://www.wiziq.com/tutorial/7640-Napster-Case-Study

9.    SCRIBD (2010), “Arista et al. v Lime Wire et al Summary Judgement” (Case manuscript) http://www.scribd.com/doc/31284309/Arista-et-al-v-Lime-Wire-et-al-summary-judgment

10.    Chloe Albanesius (2010), PC MAG.com, “Limewire Sued (Again) for ‘Massive’ Copyright Infringement” – News and Opinion, http://www.pcmag.com/article2/0,2817,2365177,00.asp
11.    Griffin Mead Woodworth (2004), “Hackers, Users and Suits: Napster and Representations of Identity”, Popular Music and Society Journal, 27, 2; ProQuest Central, pp 161 – 165, 3, 5

12.    O’Brien, Damien and Fitzgerald, Brian (2006), “Mashups, remixes and copyright law”, Internet Law Bulletin, 9(2): pp 1,3

13.    McLeod, Kembrew (2005), “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and my Long and Winding Path as a Copyright Activist – Academic”, Vol 28 No 1, Routledge Taylor & Francis Group, Popular Music and Society Journal; 28,1; ProQuest Central

14.    The Globe and Mail (2004), “Websites Stage Protest with Beatles Remix”, The Globe & Mail division of Bell Globemedia Publishing Inc, ProQuest, http://search.proquest.com.ezproxy.lib.rmit.edu.au/docview/383807912/12F195265A574575746/1?accountid=13552

15.    John B. Meisel, Timothy S. Sullivan, (2002) “The impact of the Internet on the law and economics of the music industry”, info, Vol. 4 Iss: 2, pp.16 – 22,http://www.emeraldinsight.com/journals.htm?articleid=873940&show=abstract

16.    Creative Commons (Year Unknown), “About Creative Commons”, http://creativecommons.org/about

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: