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Moore's Views & Reviews

Technology, Evil, And MP3s - A Commentary And Response To John Martellaro

Friday, November 22, 2002


By Applelinks Contributing Editor Charles W. Moore

I consider John Martellaro a respected colleague and friend. John and I were fellow columnists for both the Mac Times network and MacOpinion several years back, as well as eventually here at Applelinks, before John became an Apple employee. Indeed, it was John who originally suggested that I approach Joe Ryan and about writing for this Website. We haven’t always seen eye to eye in our respective views, but have tended to agree more often than not I think. I also greatly admire John’s skill at writing science fiction pieces, and he’s a fellow cat person. ;-)

Last week, John contributed an Insert link name here in which, among other things, he compared the ethics of MP3 music file P2P swappers with those of the Al-Qaeda terrorists, and implied that unauthorized copying of copyrighted material is a pernicious form of evil.

The article is in general very good, and John has some excellent things to say about responsibility, such as the right to bear arms in defense of oneself and one’s family.

John noted:

“The Adult Responsibility principle has a corollary. It says that when people abuse their responsibilities, the Government will take that right away from everyone, not just the offenders. What’s worse, as the government systematically relieves the citizens of their rights, due to the abuses of some, their regard for the citizens drops to the point where the government no longer really believes that its citizens are qualified to govern themselves. The combination of an arrogant government and undisciplined citizens is a disaster that countless eloquent writers have warned of countless times.”

That may indeed be what happens sometimes, but the problem here is in who gets to define what is responsible and what isn’t, as well as to whim the responsibility is owed. People tend to disagree, sometimes quite radically, on such issues. Representative democracy is the somewhat ragged and messy process we have embraced as a means of applying some sort of order to the dissonance. And occasionally, civil disobedience is necessary as a means of putting arrogant government back in their place as the servant rather than the master of the citizenry.

John goes on to discuss MP3 file swapping, which is the main focus of his article, noting:

“ Over the last two years, I have seen every argument that exists justifying the wide spread sharing of music without compensating the authorized owners. The one that most people find the most comfortable is that the recording industry executives are crooks and are not honorably compensating the musicians. What started all this, of course, is the commentary by Courtney Love at Salon in 2000 which exposed how little money musicians actually make and how much the studios make. Based on this compelling expose by Ms. Love, the prevailing feeling by users has been that it’s justified to punish those executives by stealing the music that they sell.

“This is an argument that any Al Qaeda member would love....”

Well, I read Courtney Love’s article, and thought it was pretty good, although the MP3 thing was a hot button issue long before Salon published it. Another good commentary on music sharing by a creator of musical intellectual property is a more recent one by recording artist Janis Ian, a contemporary of mine (we were both born in 1951) who burst on the popular music scene in 1966 at age 15 with her controversial saga of interracial love, “Society’s Child.”

In an article for Performing Songwriter Magazine, May 2002, later published on her Website, Ms. Ian writes:

“...They told me downloads were destroying sales’, ‘ruining the music industry’, and ‘costing you money’.

“Costing me money? I don’t pretend to be an expert on intellectual property law, but I do know one thing. If a music industry executive claims I should agree with their agenda because it will make me more money, I put my hand on my wallet, and check it after they leave, just to make sure nothing’s missing.

“Am I suspicious of all this hysteria? You bet. Do I think the issue has been badly handled? Absolutely. Am I concerned about losing friends, opportunities, my 10th Grammy nomination by publishing this article? Yeah. I am. But sometimes things are just wrong, and when they’re that wrong, they have to be addressed.

“The premise of all this ballyhoo is that the industry (and its artists) are being harmed by free downloading.

“Nonsense. Let’s take it from my personal experience. My site (http://www.janisian.com ) gets an average of 75,000 hits a year. Not bad for someone whose last hit record was in 1975. When Napster was running full-tilt, we received about 100 hits a month from people who’d downloaded Society’s Child or At Seventeen for free, then decided they wanted more information. Of those 100 people (and these are only the ones who let us know how they’d found the site), 15 bought CDs. Not huge sales, right? No record company is interested in 180 extra sales a year. But that translates into $2700, which is a lot of money in my book. And that doesn’t include the ones who bought the CDs in stores, or who came to my shows.”

Beside the point? I don’t think so. John Martellaro exhorts his readers;

“As for Apple enthusiasts, we have a choice and not much time left to make it. Despite the fact that statistics are against us, I’ll remain optimistic and suggest that we must honor and promote the admonition of the Apple mothership. “Don’t steal music.” We must completely abandon the sharing of music we didn’t pay for, adhere to and promote the principle of Fair Use, and establish Macintosh users as a breed apart. Otherwise, we can certainly look forward to draconian hardware measures, enforced by law, that will lock up our Mac, just like the future DRM-enabled PCs.”

With respect, that seems like defeatism to me. I still, perhaps naively, think the overreacting, self-serving, copy protection fascists can be fought and beaten.

As The Mac Observer’s Bryan Chaffin put it in a rallying call this week:

“Are you willing to fight for your Fair Use rights? Is the ability to play your music when and where you want important to you? Is not having the RIAA, or the MPAA decide when and where you can use your legally owned content something that matters in your life? Do you like the idea of copy-protected CDs that won’t play on your Mac?”

As for Apple’s role in all this, I think plasticbag.org’s Tom Coates has fairly accurately nailed it with his analysis in this article:

“Apple is one hundred percent ahead of the game here - so far ahead, in fact - that it’s completely unable to say it loud and clear. That’s why they have to keep saying again and again, “Don’t Steal Music”, when everyone knows that they’re only doing it to cover their own backs. The fact is that they know that however much money is being made through the selling of software, music and copyrighted material, the future isn’t in protecting the trade routes - it’s in making everyone a pirate...”

Some readers contacted me expressing dismay at John Martellaro’s rhetorical equation, of music swappers with bin Laden’s outfit, and asked me to comment, which was the genesis of this column.

Ed M wrote:

I believe that Mr. Martellaro makes some broad generalities and some rather obvious mistakes. He also presents some very common misconceptions about the majority of people who used these services as well as the greed stricken moguls who tend to have the lobby $$ to steer the laws in their favor. In short it’s a rather unbalanced article. What I’m hoping is that you would take the time to counter his argument with the already-known facts and also bring to the table some of the aspects that he conveniently left out.

I’ll touch on a few that he seemed to ignore or glaze over.

Mr. Martellaro stated that people should “play by the rules”. That’s quite vague. Who’s rules? The rules crafted by the MPAA and RIAA via lobby $$?

He also never mentioned the completely ABSURD length of Copyright. 75+ years after the *artists* death?!? In short the labels are “stockpiling” what amounts to items that draw more or less INFINITE revenue. He never once mentioned Public Domain. Similarly he made absolutely no reference to realistic INCENTIVES. In the past I’ve discussed with you the concept of artists (of all types) following the same rules every other working person follows. For example, when a stone mason finishes building you a set of steps or a wall for a public park, should he continue to collect a fee or a tax on the work that was already done? How about collecting a fee for a given amount of time? What I’m getting at is that there was NEVER a mention of a artist actually embracing the concept of “profit for work done”. If the artist wants more $$ he simply releases more works. You see the arguments that can be made. Or at least I hope you see where I’m going with this argument.... What’s funny is that after all is done, the artist doesn’t even hold rights to the compositions anymore. And it’s still OK for a Mega-Company to hold rights and collect revenue on that (pirated) work FOREVER?!? 5 years to collect revenue on a title or composition is long enough. If the artists and the labels want more revenue, they can simply release more material that people want to consume.

On another note, he’s comparing what essentially is fans to Al Qaeda. This is a slap in the face.

Thanks

Ed M.

Andy Lippincott wrote:

What the *#&!$@’s up with this??

http://www.osxfaq.com/Editorial/sci_tech/index4.ws

I’ve been a HUGE John Martellaro fan for years, often finding his articles to be insightful and even inspiring, back in The Day.

Is this the same guy??

The same physicist who once championed the free exchange of information and ideas?

The same Mac enthusiast who urged all of us to get involved in the guts of coding so that we might make better tools of our computers?

...is now telling me that file swapping is “evil”. ...is now saying the “principles” of people who exchange MP3s are akin to those of Al-Qaeda members???

I’m flummoxed.

I usually leave responses to this sort of thing to people more articulate and versed in the facts than myself. But I may have to Come Out on this one...

John, what have They done to you??

Say it isn’t so!

A.L.

Far be it from me to castigate someone for taking an ethical stand. There is too much moral relativism these days, and I commend John for attempting to stake out some ethical high ground here. However, like Ed and Andy I must disagree with him on several important points.

First, he has not addressed the issue of the moral justice or otherwise of copyright legislation itself as it currently stands. In my view, as I’ve stated in a number of previous columns, the degree of copyright protection that has been granted by governments in this century, especially over the past fifty years or so at the behest of industry lobbying, is not in the public interest, nor in the interest of the health of our culture.

The US founders agreed, somewhat reluctantly, that to promote knowledge and art -- rather than to restrict it or to guarantee monopolies to it’s creators -- to grant producers of intellectual property 14 years of protection, with an additional 14 years possible upon application, which seems to me like an adequate term. However, that original provision has been gradually stretched to 75 years and beyond, and the scope of what is covered by copyright has been vastly expanded. For example, there were no rights originally given to copyright holders regarding public performance of a copyrighted work, nor could the holder control adaptations or derivative works. The phraseology was:

“The US Constitution gives Congress the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In short copyright is a mutable legal and legislative construct, not Holy writ passed down on stone tablets by the Almighty, and I do not perceive it as a moral imperative. I would like to see copyright protection rolled back to something more in line with the term and scope the founders intended.

Secondly, while I do not advocate piracy or unauthorized copying of copyrighted material, I simply cannot equate it as being anything remotely as serious an issue as theft of real property, let alone terrorism. If someone makes an unauthorized copy of an article I write, I have not lost possession of the article myself, and I can still sell it. If someone steals my car or computer, I have suffered real loss, not just hypothetical loss.

MacCreator’s Eolake Stobblehouse, himself a copyrighted content creator, had this to say about some comments I made a while back about software piracy:

“I agree with you about the small percentage of pirated software that would have been sales. It continues to amaze me that most people still fail to see that the fact that software, etc., is not *physical* is an essential difference. It does not mean, of course, that it does not represent real work and that this should be rewarded, but it does mean that nothing physical is missing when it is ‘stolen.’”

The concept of real property and social/legal/ethical proscriptions against its theft have been developed over thousands of years of common-law consensus, but the much more abstract concept of intellectual property, and particularly copyright, has no such ancient tradition or consensual basis. It was imposed arbitrarily from the top down at the behest of vested interests, and thus has far less social legitimacy (although, I’m not suggesting that there should be no protection of intellectual property -- only that the version that has been imposed is not an ideal or just one).

I don’t believe that the ethics of intellectual property in the digital age have been adequately hammered out yet by a long shot, and I emphatically do not believe that draconian, heavy-handed impositions like the Digital Millennium Copyright Act are morally defensible (although they of course carry the provisional force of law). Unjust laws can be overturned through the political process, sometimes after the direct democratic process of widespread civil disobedience. The task is come up with something fair and equitable to all stakeholders, which includes consumers, to replace them with.

Thirdly, there is the issue of pragmatic realism. If something can be done, it will be done. As long as privacy is technically and conveniently feasible, some people are going to pirate, just as when you have a relatively free and open society, you are going to have to put up with a higher degree of crime and disorder in general than you would by maintaining an authoritarian police state.

Personally, I want to have complete control of my hard drive, and if having to tolerate the higher degree of copyright infringement and piracy in society is the necessary price, so be it. The alternative -- a technological analog of the authoritarian police state -- is much to high a price to pay in terms of lost freedom.

In any case, I’m highly skeptical that any sort of copy protection scheme will ever be uncrackable by determined, professional, commercial pirates. Yes, copy protection will cut down on casual piracy by individuals, but at a tremendous cost in loss of convenience and user autonomy. I’ll say again, that cost is way too high.

Ergo; I think my friend John Martellaro is getting exercised about the wrong issue, although that’s of course his prerogative. As I said, piracy, like the poor, will always be with us to some degree, however it’s the fascistic tactics of the copyright bullies and their (well compensated at campaign contribution time) tame toadies and fellow travelers in government that get me riled, and that I and others would be much more inclined to perceive as “evil.”

To wit, TIDBits guru and Mac community elder statesman Adam Engst has posted a superb commentary on copyright and related issues entitled “The Evil That Is the DMCA.” I strongly encourage you to read it (also tons of great links). Here are a few teasers.

Citing an Electronic Frontier Foundation white paper, Engst argues that

“...the DMCA chills free expression and scientific research, jeopardizes fair use, and impedes competition and innovation. In short, this is a law that only the companies who paid for it could love.

“...Primarily the large movie studios and record labels, who own the copyrights on vast quantities of content and who have been working with one another and via their industry associations, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), to control how we are allowed to interact with that content. Their unity of purpose and storm-trooper tactics have led some to dub them the ‘Content Cartel.’”

“However, the DMCA is merely one link in a chain that’s being used by the Content Cartel and many others to restrict access to the shared cultural heritage of the world, and in the process, extract money from our pockets, stifle innovation and competition, and protect entrenched interests.”

Amen.

Stand and fight for repeal the Digital Millennium Copyright Act, and boycott copy protected products!


Charles W. Moore

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