What’s Wrong With The Pop Music Business? The Ramifications of MGM v. Grokster.

July 13, 2005 by
Filed under: Uncategorized 

t used to be that American pop music was an affirmation of life and love, think of “My Girl” by the Temptations or any of the songs by Ray Charles or the myriad of other pop artists before the current rap scene. Black artists in particular seemed to breathe the essence and the joy of living and loving into their music. Ray Charles, Jackie Wilson and the Temptations are just a few of many great black artists who did so.

Pop music seems to have two parts now; a bland Country Western for broader appeal. I doubt if yesterday’s C and W artists would be comfortable with the fake angst of the genre today. And the darker Rap music that’s calls up the seamier side of life and in, particular the brutal and darker side of sex. Love is no longer celebrated as love. Sex is described as something close to rape and it is not love anymore but sex for itself alone. Life is celebrated as living in a kill or be killed world. There is no respect for anyone else including members of the opposite gender. Of course there are exceptions to these generalizations but these seem to be the main currents of Pop music today.

The music business finds itself in decline and blames this decline on Internet down loaders who exchange songs for free. Hollywood has made at least one movie, “Be Cool”, depicting the music business as corrupt. Buyers of music albums for a long time felt they had to pay for unwanted songs bundled in an album in order to get the song they wanted. If they felt ripped off they are getting their revenge with iPODS that allow them to download the songs they want to hear in compilations they want to listen to at a reasonable price. Others take their revenge out through file sharing with other Internet users.

Non comercial sharing of music between immediate friends or family was always considered fair use under copyright law.

Even Universal v.Sony,(click here) was based on the argument that Sony’s Video Recorders would be used for time shifting of programs so a consumer could record a program to be viewed later at a more convenient time for his own use was fair use under copyright law. The ruling said that new devices that could be used for legitimate uses as well as illegitimate uses could not be banned from the market place. Further that manufacturers or purveyors of such devices could not be sued for copyright infringement. Much like an auto dealer who sells a man a car who uses the car in a bank robbery to pay for the car is not liable for the criminal act of the man. Even if the auto dealer knew that the man could use the car for a criminal purpose.

MGM v. Grokster

The recent MGM v. Grokster case took this a step further and said the purveyors of technology, in this case P2P file sharing by Grokster and Streamcast (Morpeus) via the Internet, could be liable for the infringement of copyright even though the software and devices could be used for legitimate file sharing uses. Thus giving a powerful litigation advantage to members of the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) who are now free to sue not just youthful offenders and their grannies but purveyors of file sharing software and companies like Microsoft and Sony also who make (read encourage) technology that could be used to infringe. This is likely to inhibit research and development of technology that could be valuable for legitimate uses as well as copyright infringement. (click here)

Grokster v. MGM placed responsibility on the purveyors but only if they actively encouraged copyright infringement. The irony of this is that if the owners of copyrights, Universal and the producers of television entertainment had won Sony in the first place there probably would have been no commercial incentive to develop DVD or CD players and recorders from which the motion picture industry gets a large share of its current profits.

Music is different from DVD in that it can be presently downloaded in a few moments whereas movies take considerably longer even with broadband.

As Ye Sow So Shall You Reap.

Tthe music industry for a long time it bundled an artists inferior work with his best work and forced the consumer to buy it. Albums cost about twenty dollars and for many young people who are the consumers and target audience of this product it was an extortionary price.

The music industry instead of developing the
Apple model sat on its old business model in the face of changing technology hoping that the courts would vindicate them.

The problem here is how much infringement constitutes liability and does just the act of making P2P software constitute encouragement of infringement? What would be the damages? Thousands, millions or billions of dollars? Damages large enough to put Microsoft or Sony out of business or possibly liability so draconian that it would prevent inventors from developing new technology that could be have valuable legitimate uses but could be used by a few to infringe on copyrighted material.

The music business needs a new business model, perhaps along the iPOD model or some other new innovative model. Obviously the demand is there. Perhaps the problem lies with their current content and their bundling method of sales. At any rate the music business can now sue the creators of the technology which made their monopolistic and abusive practices unprofitable along with the consumers or wise up and change to meet the new marketplace and the youth culture that is infinitely more digitally sophisticated than the RIAA and the MPAA.

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