Klarinet Archive - Posting 000278.txt from 2010/07

From: Bill Hausmann <bhausmann1@-----.net>
Subj: Re: [kl] Sheet music copyright
Date: Mon, 19 Jul 2010 23:57:10 -0400

At 04:39 AM 7/15/2010, you wrote:

I've been out of town, but I MUST respond to a few things here.

>On 07/13/2010 05:16 AM, Bill Hausmann wrote:
> > Without which there would, in this case, be no market at all. The
> > market value would be the price of each copy: $0.00. As you yourself
> > state below.
>
>Recall that copyright was developed for books -- hard copies. There's
>inevitably a market for such things, because here scarcity of supply is
>not artificial -- there are inevitable and significant per-copy costs of
>production and dissemination, which have to be borne by the supplier and
>so which have to be charged for. There's no way to avoid that. Even
>the producer of a pirate edition has to bear and cover those costs.
>This is real and unavoidable scarcity, not in the sense of copies being
>hard to find, but in the sense of every copy costing effort, and
>_efficient_ copying requiring major infrastructural investments not
>available to ordinary individuals.
>
>In addition, it's easier to typeset a copy of a book that already
>exists, than to typeset a book from an author's manuscript (even if
>"manuscript" today means a Word document). That means that there's an
>incentive for competitors to wait for _someone else_ to introduce a new
>book and then copy it and undercut them.
>
>In such cases copyright has a valuable role in regulating competition in
>the marketplace. Recognizing that there _is_ a sales market, it helps
>to give an incentive for investment -- publishers can take the risk of
>producing a new book confident that the short-term monopoly will permit
>them to recoup the costs of producing and publicizing the new print work
>before their competitors have the opportunity to begin printing the same
>text.
>
>By contrast with electronic files you're talking about a type of media
>where the per-copy costs of production and dissemination have themselves
>tended towards zero, especially in circumstances where you are able to
>spread the task among multiple individuals or organizations (e.g. via
>mirror servers, via peer-to-peer services such as BitTorrent which
>spread bandwidth and file transfer costs over potentially everyone who
>has already downloaded even part of a copy, or simply via personal copying).
>
>That means two things. First, there's basically no scope for a per-copy
>sales market of electronic works, because with such an extreme facility
>of reproduction the natural price-per-copy is zero. (No sales market
>doesn't mean no incentives for supply -- more on that later.)

The ease by which the theft can occur is not relevant. Whether my
wallet is in my pocket or on the dresser, if you steal money from it
I am still out the dough. Also note that, while a single piano sheet
is indeed very easy to photocopy or scan, entire band arrangements
contain quite a few pages.

>Second, it's shifted the question of who has the incentive to copy.
>Rival commercial publishers aren't the concern any more, because they
>have no meaningful way to undercut the original publisher if the price
>is zero. Instead, it's _customers_ who have the incentive -- it's very
>useful for the consumers of intellectual works to be able to share them
>-- and also the ability to copy.
>
>In these circumstances, copyright does a very different thing -- rather
>than regulating an existing sales market, it creates one where none
>would exist, by giving publishers a legal tool to artificially constrain
>the supply. This is also putting them into conflict with the interests
>of their customers, conflict which has very negative consequences for
>everyone.
>
>It's not clear how to resolve that conflict in a way that fairly
>respects everyone's interests (although it may mean that publishers in
>the traditional sense will have to change their ways of doing business
>quite a lot), but it does seem fairly clear to me that a system that
>promotes active conflict between suppliers and consumers is one that can
>only end up hurting both.

Change to the point of going out of business. This would be an
extremely BAD thing, as older works would become unavailable, among
other evils.

> > No injury to "society," but plenty to the author/composer.
>
>That depends on your business model. To begin with, it's far from clear
>that filesharing actually hurts demand for hard copies (books, CDs,
>etc.). The statistics on this appear to be that the overall media spend
>has remained fairly constant, and the reason music sales are declining
>is because spending has shifted to other arenas such as computer games.

But it clearly SHOULD be going UP. The difference is LOST
income. If computer games now take the same dollars that formerly
were spent on sheet music we might as well give up now and declare
the death of society.

>If you don't rely on price-per-copy, there are multiple ways to make
>money out of the distribution of electronic files.

Name one.

>But demand itself is a function of awareness -- what happens if the
>company does not bother raising awareness? What happens, too, to those
>people for whom the profitable price is still too high? (I'm thinking
>here of drugs as much as books -- look at the history of how third world
>access to vital medicines has been constrained by patent law.)

FREE or cheap (that is, below market value) access, perhaps, but that
is not equivalent to "access."

> > The lack of demand comes first. No other publisher would pick up a
> > work that has run its course, so the author would be unable to secure
> > such a deal in any case.
>
>You're assuming a level of intelligence on the part of publishers that
>is not borne out by reality. Many works fail to sell because they are
>not marketed appropriately -- an author can readily secure a deal with a
>second publisher who better understands the market for a book and how to
>publicize it. Plenty of authors (and recording artists, and filmmakers)
>have experienced conversations like this one: (cut)

What you do not realize is that publishers DO market works; in fact,
the are the ONLY entity with the funds and the audience to do
so. The marketing is limited, of course, by the size of the market
itself and profit potential, but they DO print the catalogs, make
recordings of new works for band, orchestra and chorus so directors
can hear them, and make available works that might not otherwise see
the light of day at all.

> > Yes, indeed they DO serve the publishing company. The company,
> > unlike the composer, has invested its capital in printing costs,
> > warehousing, promotion, etc.
>
>... and one of the joys of electronic distribution is how it takes out
>all those infrastructural costs and so puts effective publishing in the
>hands of ordinary individuals.

Self-publishing is certainly an option. But any potential profit
will be gobbled up by marketing costs.

> Add to that the potential that
>electronic media offer for what in copyright law are referred to as
>"transformative works", created on the random whim of ordinary members
>of the public, is that you have a strong incentive (if you're interested
>in promoting creativity) to permit redistribution and re-use by members
>of the public.

Nice, but not at all in the composer's interest.

> > Things that have lost copyright protection, if they ever had it, many
> > years ago. I encourage people to copy them freely and use them for
> > inspiration.
>
>What about the arrival of new works into the public domain? Copyright
>legislation over the last half-century, and the extension of copyright
>terms, has meant that the last time this happened in any substantial
>quantity was in the 1960s.

HERE we agree. The new copyright extension was absurd, going WELL
beyond the intent of protecting the rights of the CREATOR of the work.

> > As I have said, they are perfectly within their rights to do so, I
> > will be more than willing to download their works, etc. But if one
> > chooses NOT to distribute in that way, it is his right, which may not
> > legally be usurped by anyone else.
>
>This seems to me to be the crux of our disagreement -- you seem to view
>it as virtually axiomatic that a creator should have monopoly control
>over the uses of his/her creation. I don't view it as axiomatic, and
>neither does copyright law.

Yes, I do, and yes, I think it DOES. In fact, I think that is
EXACTLY and ENTIRELY what it does.

> >> It might not be occurring within the market model envisioned by the
> >> "intellectual work as property to be sold" view of things, but that's
> >> because that model is a flawed and limited picture of what motivates
> >> people. It doesn't even work for physical property, let alone creations
> >> of the mind.
> >
> > Now that's just silly.
>
>Which part of it is silly? If you are talking about the reference to
>physical property, I was thinking of the cases where commons-based
>approaches can be superior to those based on private property. I was
>also thinking of Terry Savage, and her furious denunciation of two girls
>giving away free lemonade; it seems to me that her model of reality and
>society, and how property relates to society, is incomplete.

I thought it was brilliant. Sure, they could corner the market by
giving it away free, but they had to be subsidized for that to
work. We do NOT want to go there!

>As far as intellectual works go, it seems clear to me that treating them
>too like physical property places all sorts of unpleasant constraints on
>society and the benefit that society can gain from works of the mind.
>One of the most obvious examples of that is the negative impact of
>scientific publishers exerting their "intellectual property rights" over
>the distribution of journal articles. The scientific literature needs
>to be free to exchange -- something recognized by the US government,
>which mandates that all research articles produced by government
>employees must be public domain.

The information is free to obtain -- just READ the article. If you
want to REPRINT it, THAT will cost you, but so what? Same with
music. Borrow a copy and memorize it. Nobody is stopping you. But
if you want to own a printed copy, LEGALLY, you need to purchase it
from the creator of the work or his publisher.

> > Most of my musical performing is done without pay, and that is fine with
> > me. I do not depend upon it for my livelihood. It is a ~hobby. But
> > I retain the right to perform for a price if I so chose.
>
>Sure, but you are not comparing like with like -- your performance,
>versus (say) a recording of your performance. I accept that this
>distinction won't cut the mustard with you, but it is a difference that
>matters in terms of formulating copyright policy.

Mechanical reproduction rights (recording) are an entirely different
issue. I don't think we want to go THERE, either (at least not for
the purposes of THIS discussion)!

>If you accept the foundation of copyright theory as being to serve the
>public interest by furthering the creation of and access to new works of
>the mind, then you might appreciate the tradeoff made here as being
>potentially reasonable.

I accept the purpose, as you do. But you must also accept the
MECHANISM! Copyright law furthers the creation of new works BY
providing a secure means of compensation for their creators. Take
that away and the system collapses.

>But it matters if the guy's principal revenue streams (and thus
>incentives to create) are not dependent on per-copy sales of sheet music
>for his work. That points towards a potential distribution model that
>permits the beneficial effects of copying Eleanor highlighted, without
>hurting Jason Robert Brown's incentive to create.

It does not matter whether you steal out of his left pocket or his
right pocket.

>Madonna is a fun example because back when Napster was in its heyday,
>she recorded a short message full of rude words and uploaded lots of
>copies to Napster with filenames that suggested they were her songs. An
>early example of the "Rick Roll", but without the Rick ...

Because they were STEALING from her. The courts eventually agreed
with her. It does not matter how rich or undeserving she might be,
she still deserved compensation for her work that Napster was giving
away free without her permission.

> > The publishers and artists are jointly protected against the copiers,
> > or at least that is the intent.
>
>But publishers and artists do not have perfectly overlapping interests,
>and sometimes their interests oppose. Take the example of the British
>band The Verve, who secured the rights to use a sample from a Rolling
>Stones song in their song "Bittersweet Symphony". Somehow, after the
>song became a hit, the lawyers for the Rolling Stones' record label
>decided that The Verve had sampled more than the agreement allowed for;
>the resulting battle was short and nasty and now means that The Verve
>have no rights whatsoever in _their own song_.
>
>Their lead singer now announces it in concert as "the best song Keith
>Richards has written in years" ...

I'm not sure how to respond. I could comment about scum-sucking
leech lawyers, or talentless samplers, but either way, my sympathy is
limited. It sounds like the Stones just had better lawyers than the
Verve. Too bad for them.

>The point being that creators, like the general public, actually have a
>STRONG interest in being able to freely access and re-use intellectual
>works that already exist. Creativity isn't something that exists in a
>vacuum; it is fed and nourished by the creative work of others. There's
>nothing to get in the way of creativity like the guillotine sound of:
>"You can't just go off and do that -- you have to secure the rights first."

Yep. Or you can do the work first, and then secure the rights BEFORE
you release it. But if you don't, you will find yourself in the
situation above. And it MUST be that way or there will be no reward
for creativity.

>I'd cite as evidence both the experience of publishers like O'Reilly who
>have maintained a profitable business publishing books that can be
>freely copied, and the recent evidence suggesting that falling music
>sales are down to shifts in purchasing patterns among different media
>types, rather than filesharing hitting the market.

As you said, copying a whole book is too difficult and
expensive. This publisher has merely consented to give you the right
to do something you would not have done anyway, but it makes you FEEL
better to think that you COULD.

> > Your fears of censorship are overblown.
>
>The fears stem from two factors. One is that the technical
>infrastructure built for enforcing and policing copyright in digital
>media offers fairly extensive potential for censorship, and for
>enforcing technical limits that prevent even fair use.

Censorship is imposed by government. Publishers may alter content,
eliminate works from their distribution, etc., but those are business
decisions, and entirely different thing, and driven by the
market. Of course, I oppose anti-copy schemes for videos that
degrade even the original when used as intended and other
restrictions on fair use.

>The second is much more immediate: you might look at the way that the
>family of James Joyce have used copyright law to restrict what Joyce
>scholars can publish, or the way in which the sister of David Helfgott
>has been unable to publish documents to rebut the portrayal of their
>father in the film "Shine", because they are her brother's letters, and
>he has signed the copyright over to his wife who refuses to permit them
>to be published.

I see no problem here. She is ENTIRELY within her rights, and if the
other guy doesn't like it, tough beans.

> > Copyright does not restrict access to works
>
>You might try mentioning this to scientific researchers -- I think they
>would laugh. If you knew the hours I have wasted trying to track down
>copies of some articles, a click of a button away but for the fact they
>are held behind a publisher's paywall at prices that are out of all
>reason to expect an individual researcher to pay ...

If it was published somewhere, a copy exists somewhere they can
borrow, from a library or other source. There are actually OTHER
ways to get a document besides the internet!

> > As long as those folks are taken care of, works will be produced and
> > published, and only heavy-handed government-imposed censorship will stop
> > them.
>
>I'm more worried about corporate censorship, personally. You might look
>at Apple and the way they constrain what applications can be used on the
>iPhone and iPad -- their ability to enforce such constraints is legally
>backed up by provisions in the DMCA. You could also look at the recent
>disturbing case of Amazon unilaterally deleting copies of an Orwell
>novel (disturbingly apt...) from customers' Kindle devices. The
>technical infrastructure being put in place to enforce copyright has
>scope for much wider (and more sinister) uses.

Apple is controlling its product and the applications, yes. Maybe
that is to protect themselves from viruses and harm to their brand
from inferior apps. Copyright does not enter into it. Apparently
copyright WAS an issue in the Kindle incident (and ironic it
was!). But I don't have a problem with the solution in that
case. Of course, one COULD go out and buy the hard-copy book
(paperback) for a very reasonable sum, and Amazon would have no
further hold on them.

Bill Hausmann

If you have to mic a saxophone, the rest of the band is TOO LOUD!

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