A Brief Argument Against Copyright
8 min read

A Brief Argument Against Copyright

Hello, welcome to Penny Fractions! If you enjoy this newsletter you can check out back issues here, support it via Patreon, forward it to a friend, post it in a work slack, or mention it on social media! Whatever you do, I cannot give enough thanks, so let’s get into talking about copyright.

Earlier this year, in an op-ed for the Music Network, Nathan Jolly asked musician, professor, and writer Damon Krukowski, whose book Ways of Hearing I covered earlier this year, about his thoughts on user-centric streaming, the payment method that Deezer recently announced it’ll begin experimenting within 2020. Krukowski skepticism didn’t surprise me (“There might be some marginal differences…but on the larger scale it has all the same pitfalls as the current model”) but his solution intrigued me. Here is Jolly quoting Krukowski:

This sounds facetious, but I mean it seriously: I think streaming should be copyright free...I would like to see services like Spotify in open competition with any and all other builders of competing streaming models – instead of dominating the business through secretive and private copyright deals they cut with the major labels.

His suggestion made me wonder just how arcane the concept of copyright is within music in 2019. Entire books could and are written on the topic of copyright but a few stories from this year presented an interesting window into an ever-shifting world within music.

Who Owns The Right To Make Music

In late July, Katy Perry and the writers behind the 2013 hit song “Dark Horse” lost a court case that alleged the song borrowed from a 2008 Flame song called “Joyful Noise”. I’ll admit my unrefined ears couldn’t hear much sibilance between the two songs that implied copyright infringement, but that lawsuit ended up siding against Perry’s team and Capital Records are now forced to pay out $2.8 million. It’s an absurd sum of money attached to a single recording but what’s even more outlandish is that only a minor portion of the song was litigated through the courts. I’d be hard-pressed to say this was the reason why the song was successful enough to go no. 1 in multiple countries.

Nastia Voynovskaya, while reporting for the San Francisco radio station KQED, quoted several musicians that expressed concerns about an increased likelihood of lawsuits and the formation of a creative chilling effect. This concern has been at the forefront of copyright discussions since Marvin Gaye’s estate won against Robin Thicke/Pharrell Williams with their song “Blurred Lines”. Voynovskaya’s reporting shows that while there hasn’t been an uptick, each successive case places musicians and labels within the aim of copyright hounds.

Certainly, major labels would jump for joy at not needing to pay potentially-deserving parties a single dime (follow any up-and-coming rap producer lamenting not getting paid). Still, Thicke and Perry’s cases highlighted a somewhat core issue about music copyright: What is this exactly is this right for? Music as a cultural item finds value in its ephemeral state, which allows music to be heard on the phone, in a car, on the radio, etc. That there is an ever-growing collection of notes or phrases that are potentially off-limits, unless one wants to deal with legal pushback, would appear to go against a pre-commodified understanding of music. I’d argue even more so when these lawsuits are essentially attempting to recollect money only from songs that enter a certain level of public consciousness.

These are not exactly new-style court cases (See: the early lawsuits against rap sampling) but I’d say the legal system made a mistake back then and continues to only reinforce such poor logic. The value of recorded music can provide some meaningful income for musicians but that’s become increasingly difficult in the digital age. Yet, I’d rather see a deeper reexamination of the contemporary music business, rather than simply relying on punitive lawsuits to make back what was allegedly lost. These cases are often limited to those with pockets deep enough to go hunting, so it’s a transfer of wealth between the record industry's 1%, which doesn’t strike me as any solution to industry-wide monetary anxiety. So, perhaps there could be a technological solution to matters of copyright?

Everything Under A Single Content ID

Last year I wrote a bit about YouTube’s Content ID system, which is used to identify songs and provide payouts to the correct rights holders. I mentioned it within the context of Lil Uzi Vert’s Instagram compilation of song leaks, where one could find the Content ID system picking out songs after the song was released, even if the video was uploaded months before the song’s official release. I found this a bizarre if slightly dystopian way for music tracking to work. Audio is perpetually being monitored in case too much of a recording matches with a song that should be monetized.

This established system forces the entire YouTube community to tip-toe around the YouTube Content ID system, which isn’t exactly ideal. The reason is that such a system wasn’t established with either individual artists or YouTube creators in mind. Instead, Content ID was forced by media corporations like Viacom, and is often criticized by the record industry for not being exact enough, so YouTube could wiggle out of facing perpetual lawsuits for infringing content. Heightened corporate paranoia over song accreditation lawsuits feels less concerning for an average creator than YouTube's endless game of whack-a-mole in which it attempts to monetize all existing content. (An entire separate newsletter could be written on how Content ID favors major label artists compared to independent ones but maybe another week)

The technology behind Content ID – being able to retroactively identify a finished song from an Instagram bootleg recording – is fairly impressive. My grievance is that with this technology being used towards such ends, while it is true that a Lil Uzi Vert may be the rights holder, the fact that all content on YouTube, a platform used by over 1.8 billion people, must exist in a potentially monetizable state doesn’t feel ideal. Instead of allowing content like this to simply exist as a collective public archive or letting videos made by people that feature songs simply exist sans entering this system, there must be a way to pull a bit of money out of it, even if the work being produced isn’t being consumed solely for that song. This is the direction that the record industry appears to desire. Every and all things are for an extra buck.

Ariana Grande vs. Ariana Grande

Earlier this month it was reported that Ariana Grande would be suing Forever 21 for $10 million because the fast-fashion company posted a ‘look-alike model’ on social media after Grande had allegedly turned down a deal with the retailer. Now, fast fashion companies outright stealing the work of smaller artists isn’t new and the power imbalance between a multinational company and a single artist would have me on the side of the latter. Yet, in this case, I find it a bit trickier. Pitchfork covered the story earlier this summer and this paragraph really stuck out to me (emphasis mine):

Intellectual property lawyers tell me Grande has a strong case and will probably win a settlement. And they say that, as the music industry increasingly looks for money outside of selling or streaming music, these types of legal fights could affect more and more artists. “This is the future of the music business,” says Ken Abdo, an entertainment lawyer who was involved in the dispute over Prince’s estate.

One could frame this as a way for the music industry to make money outside of the traditional means. Yet this naively accepts that artists and record labels should even hold the right to such litigation. What’s happening across these examples is further establishing a precedent where anything associated with an artist is worth commodifying (a perverse continuation of the 360 record deal logic). Not only can a single artist own rights over a musical scale, but a video uploaded on a platform used by nearly two billion people can also be micro-tracked for a few penny fractions. It’s a rather bleak way to conceptualize the existence of a musician -- essentially all parts of their existence must be optimized for cash. Issues of copyright certainly exist outside of music, and in industries like healthcare, they hold far more dire consequences. But the extent to which this view creates a world where all expressions are properly monetized to the detriment of all creators no matter the scale, or context, is certainly unique.

Unheard Labor

Two very brief notes this week in Unheard Labor, your nearly-weekly update into whatever stories I feel somehow fall into the bucket of music and labor. New York State is still investigating Sofar Sounds for its usage of unpaid labor but last week it was reported that the company is indeed hiring paid employees to do some work of its previous volunteer staff. Certainly a small step in the right direction. SAG-AFTRA reportedly reached a deal with several labels over music video performance. If anyone has experience working with SAG-AFTRA on music videos, I’d love to know more! The last bit of news is that the United Auto Workers at General Motors are on their tenth day of striking with nearly 50,000 people on the picket line. I won’t make a stretch to connect this to music; it’s just a big deal within American labor so I wanted to include it.

Producers are losing millions in royalties every year – here's what you can do about it - DJ Mag

I’ll admit that I’m rather skeptical of how performance rights organizations work in 2019 and if the entire system shouldn’t just be torn down. And stories like this one, which somehow places fault on artists and record labels for not playing by an absurd system of data collection and then self-stiffing themselves out of money, is a bit laughable.

The Future of Music: A Vision of Post-Format - Midia Research

Can I coin the phrase “post-streaming” right now? If we’re all good with that phrase then this is a good example of what will be the norm in teasing through what will be the next stage of the digital music economy.

Spotify Dismisses Amazon’s High-Definition Audio: ‘It’s Not a Big Differentiator’ - Variety

I didn’t include news about Amazon’s HD audio launching last week but the snooty comments by Paul Vogel, Spotify VP and head of investor relations, amused me to include here. I’ll admit he isn’t wrong!

Will Tencent’s Hunger to Own the Music Business Stop at Universal and Spotify? - Rolling Stone

Hard for a headline to better capture the absurdity of corporate consolidation within the music industry. This isn’t to knock Tim’s analysis, which is on the mark. Tencent attempting to buy into as many different musical companies as possible without going too far and provoking antitrust concerns, unfortunately, makes a lot of sense.

Pop's need for speed: 'You have to drop new stuff constantly' - The Guardian

This story, a meditation on the effects of technology on pop music, is written every few years with a new headline and a new hook. This isn’t a great example of the form but I enjoy the genre enough to include it here.

Music listening in 2019: 10 takeaways from the IFPI’s new report - Music Ally

People! Lots of people, stream music! Fewer people, though still too many for the IFPI, pirate music! Pop music is still popular! All these insights and more can be found in IFPI’s latest report on global music listening habits, which you can check out here.

The Penny Fractions newsletter arrives every Wednesday morning (EST). If you’d like to support it, check out the Patreon page or follow it on Twitter. The artwork is by graphic designer Kurt Woerpel whose work can at his website. The newsletter is copy-edited by Mariana Carvalho, with additional support from Taylor Curry. My personal website is davidturner.work. My current job is Curation Analyst at SoundCloud, so all thoughts here represent me, not my employer. Any comments or concerns can be sent to pennyfractions@gmail.com.