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A Musician's Take on File Sharing, DRM, and Copyleft Licensing

by Miriam Rainsford
06/10/2003

In a recent weblog, Derrick Story wrote "I'm tired of listening to the RIAA. I want to hear from the musicians."

We hear so much in the press about the RIAA's stance against "music piracy" and the attempts of major labels to provide legitimate music download services, while making a determined effort to deter those who wish to share music on peer-to-peer networks. Story is all too familiar with the current stalemate between consumers and the RIAA, but raises the point that "I don't know what the actual artists are thinking. They are the ones who create the content that everyone else is arguing about."

Musicians are often unwilling to speak out against the tight constraints of their record labels, afraid of biting the hand that feeds. But an increasing number of artists are embracing the changes in digital technology as a potential revolution which may free them from the shackles of the commercial record industry. As an independent, computer-based composer whose work deals directly with fair use rights in an interactive world, I will dare to venture an answer.

Yes, we have indeed heard enough from the RIAA, a conglomerate of the five major record labels which claim to speak on behalf of their artists, yet are out of touch with musicians' need and interests. I would suggest that instead, financial interests and a fear of adapting to changes in technology are the primary motivation behind their impassioned speeches against "piracy" and their pursuit of multi-million dollar lawsuits against students running private, non-profit file sharing networks.

Differing Opinions About Music Sharing and Sales

The issue of peer-to-peer (P2P) file sharing and music downloads gives rise to strong and differing opinions from record company executives, musicians, and the listening public. A conclusive study of the impact of P2P on the record industry proves difficult to obtain, and each side has manipulated sales figures to their advantage: while the RIAA present a worst-case scenario, others demonstrate that P2P does in fact encourage sales by introducing listeners to new material which is then purchased in CD format.

The economist Stan Liebowitz, hitherto supportive of the notion that P2P has no impact on the record industry, released a controversial paper (.pdf download) last week demonstrating that there is some negative effect, although difficult to establish due to the multitude of other factors.

These include changes in musical taste, the death of the CD single, the introduction of new formats (including authorised MP3 sales), and lower numbers of CD releases due to the current economic recession. Liebowitz's study should also be viewed as somewhat inconclusive as it relies purely on sales figures. It is noteworthy that he has neglected to survey actual public opinion as to why their purchasing habits may have changed.

However, regardless of one's position either for or against P2P, it's clear that file sharing has indeed proved a direct threat to the establishment, as it decentralizes control. Peter Drahos, in his book Information Feudalism supports these assertions: "the threat was not so much to entire industries as to individual players who did not want to lose their position of dominance. These players turned to copyright law in the hope of finding immunity from competition and the uncertainties of technological change."

Digital Rights Management: Overkill for Users

And if the major players get their way, their reassertion of control would take the form of Digital Rights Management (DRM) technology embedded in every computer, CD or DVD player, car radio or mobile device, providing an extreme means of control over any attempt to share music. DRM, whether in software or hardware form, is impossible to employ without some level of infringement of the user's civil liberties. Whether this is simply a matter of denying fair use rights, or delving deeper into setups such as TCPA/Palladium which entertain the possibility of remote data-mining, the risks to privacy are very real. When combined with anti-circumvention legislation, this results in a situation where the terms of copyright law are no longer defined by the government but by the publisher.

As a musician I find the notion of using DRM technology abhorrent--not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.

But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment, and it is very difficult to create music without an atmosphere of freedom. Musicians just want to be free to create, without being concerned over having their music--or the tools they use to make music--tied down or controlled by devices which may well have detrimental effects on audio quality. Perhaps the reason Apple has been so notoriously silent on the topic of DRM is that the Mac OS dominates the creative market. To implement DRM on a Mac platform would risk alienating their primary customers in the pro audio sector.

I believe there exists a better alternative to DRM and technological methods of control, in the form of copyleft licensing. Copyleft is the permission to redistribute which forms the essence of the Free Software and Open Source movements. By adapting this principle to suit creative works, musicians have a means to license the sharing of their works without unnecessary technical constraint. The EFF's Open Audio License and Larry Lessig's Creative Commons project are examples of the practical application of copyleft principles in the arts, which musicians may easily utilise without the need for specialist legal knowledge.

File Sharing and Copyleft Licensing

As a struggling composer myself, I think that file sharing promotes, rather than takes value from my music. If I permit my audience to copy my works--which, let's face it, they are going to do anyway, whether I like it or not--then DRM technology becomes unnecessary. Copyleft licensing decriminalizes sharing, whereas DRM makes criminals out of our audience; indeed, out of us as the musicians. It would be impossible for me to compose my heavily sample-based work without access to file-sharing networks. The job would be tedious and time-consuming, and indeed sometimes nigh on impossible, as many of the samples that I collect are from rare MP3 files.

There is no criminal activity involved in taking samples for the purpose of parody or artistic criticism, as this qualifies as fair dealing under UK law. Under copyleft licensing, there would be no need for me worry about the methods I use to collect my samples from the Internet, as redistribution is permitted. One could even form a repository of copylefted works, which could be employed by musicians working with samples, web designers seeking sound effects and perhaps even teachers who might wish to use a piece in a drama class. Darren Landrum has begun work towards an Open Music Resource Library which would offer such services.

Kris "Thrash" Weston, formerly of The Orb, has turned to using copyleft licensing in his new venture, bLiP Records, where he distributes his releases online via his site. Weston also operates servers on all the major P2P networks, releasing the entire contents of bLiP's premiere album, "WTF? - The Madonna Remix Project," in MP3 format under an open audio license. This may seem a risky move for a new business, but Weston believes in the power of file sharing as viral communication, promoting his new recordings and providing a form of free advertising--very welcome to a new company with little money to spare.

Weston terms copyleft "a karmic tax", as it establishes a level playing field; those who feel they will lose out through permitting reproduction are the ones at the top of the tree: "it only affects the people making too much in the first place". Having seen the ugliness of the music business from the inside during his days with The Orb, he has chosen copyleft as a means of fighting back against the institutionalisation of music: "... if only purely to stop the onset of the DMCA and the pointless bodies that do little for the struggling artist and much for the old boy's club".

One difficulty which bLiP records encountered in releasing the Madonna Remix Project album was that MCPS (UK Mechanical Copyright Protection Society) licensing is at present incompatible with copyleft licensing. Weston wished to draft his own license which would permit his customers to enjoy sharing MP3s of the album. When he approached the MCPS, their response was that a copyleft license would be "inappropriate."

On further inquiry it seems that, as an artist signs an exclusive license to the MCPS for royalty collection, the MCPS are then unwilling to extend this license to include file sharing. This is somewhat understandable when one considers that the MCPS takes an 8.5% cut from every album or digital distribution in the United Kingdom. The MCPS are willing for their members to use copyleft licensing as long as they sign a waiver for royalty collection. But what made Weston's job difficult is that, under UK law, it is illegal to press an album without an MCPS license. And an album license will not be granted by the MCPS if the album uses copyleft material.

So, yet again, we find that musicians who wish to work independently of the system are being locked out by a monopoly operated by the MCPS, who receive the major part of their commission through royalty collection for the Big Five record labels. This makes it hard to believe that the MCPS would be unbiased in their service toward musicians, even though it would take little effort for the MCPS to implement alternative forms of licensing. Julian Midgely, Chairman of the UK Campaign for Digital Rights, commented on the situation: "From the experience of bLiP Records, it appears that the British system for music publishing is heavily geared toward dissuading musicians from releasing their music under open licenses. We can see no adequate justification for this, and will be investigating further."

Kevin Marks' mediAgora presents a potential solution to this problem. mediAgora is a business model for internet-based distribution, designed to work within a P2P framework. mediAgora supports Creative Commons and other copyleft licenses, and permits and actively encourages redistribution by rewarding those who share files as virtual "promoters." Those who share files on their P2P systems are required to pay a fee to purchase the files, but are then rewarded when another listener buys and shares the music from their server.

A predetermined percentage from all these fees is returned to the artist, who takes the place of the record company middleman and receives around 70% of royalties. Although it may seem a complex system, it is designed to fit easily into present file sharing networks. Marks is convinced that DRM is unnecessary, and destroys the value of the work. He believes that the best way to encourage fair payment for an artist is to make legitimate systems easier to use than the unauthorized networks: "If you lock up your work with some scheme that requires a password to be entered and a network connection to authorize, or one that sets a time limit after which it will destroy itself, or even just one that prevents editing and copying, your customers will value it less, and be less likely to pay for it."

The success of Apple's recent venture with EMI indeed demonstrates the willingness of customers to purchase downloadable files when the system is easy to use and integrates neatly into their existing software to provide a high quality service that can also be shared across a network. While still hampered by some DRM constraints, the openness of EMI in permitting a certain level of copying and streaming is noteworthy in demonstrating a more creative outlook.

Final Thoughts

As musicians, we have a natural tendency to turn any situation to creative advantage, but our attempts are being frustrated by those at the top, who don't wish to lose their increasingly unstable monopoly over the production of music. William Gibson, in a speech at the Director's Guild to America, compared the evolving situation in digital distribution to the medieval feudal system, with the record companies as our patrons, feeding off our hard labor. We as musicians are tired of being subject to the whims of middlemen, who take a greater cut from our earnings than is reasonable. Like the medieval peasants, we are seeking change and revolution; but when musicians revolt, they do so with creative flair. We are exploring solutions such as mediAgora and copyleft licensing as a means by which we can return the balance of power to where it rightly belongs, with those who create the music.

Miriam Rainsford is a composer, singer and songwriter in classical, electroacoustic and underground dance music.

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