In the late 1960s, Marshall McLuhan wrote extensively on the importance of
understanding the “messages” of technology as we look to understand ourselves in a
new world. As a philosopher during the dawn of global-media, McLuhan saw power
in the technological mediums that had accelerated the very nature of human society.
He believed the “message” of any technology is in the change in scale, pace, and
pattern it introduces into our human affairs. During the industrial revolution for
example, although the railway didnʼt introduce movement or transportation, it
accelerated and enlarged the scale of previous human functions, and was
instrumental in creating new types of cities, business relationships, and political
movements. These social advances occurred whether the railway operated in a
tropical or frigid environment, and was independent of even the most important
freight carried on the railway. In essence, the affect of the message was bigger and
more powerful than the content carried on the medium. The danger in not making
this distinction, especially for law makers, is that by enacting laws that favor (even
the most valuable) content over message, we fail to protect the innovations that
have been instrumental in progressing our society and risk stifling further cultural
advancement.
S.968, the Protect IP Act, in the words of introducing Senator Sen. Patrick Leahy
(D-Vt.), was designed to “provide the Justice Department and rights holders with
important new tools to crack down on rogue websites dedicated to infringing
activities,” but in effect attacks the advances in scale, pace, and pattern internet
filesharing has given the recording industry. PROTECT IPs offensive is not directed
toward the infringers themselves, but toward “specified U.S. based third-parties,
including Internet service providers, payment processors, online advertising network
providers and search engines.” The problem is in the billʼs overly broad definition of
an Internet site, which essentially removes the protections for Internet Service
Providers provided by the Digital Millennium Copyright Act and gives a judge carte
blanche power to shut-down websites with unsettled issues of legality; lumping
almost every segment of the Internet infrastructure together with the real criminals.
I argue that shifting liability for copyright infringement to hosting companies,
storage sites, search indexes, and other intermediaries during the digital revolution,
would be like like holding the railways liable for acts of smugglers during the industrial
revolution. Choosing to attack the medium directly puts society at risk of loosing the
wonderful innovations and new social and business patterns given to us by new
technology. This holds especially true for a failing music industry, whose few areas
of growth have been in an online space moored by the ability to inexpensively store
and distribute content.
For digitally recorded music, the two biggest threats posed by PROTECT IP are the
destruction of the DMCA protections for storage and hosting infrastructure and the
broad persecution of sites that circulate links to “pirate” domains. To understand
how, you must first understand the message of filesharing technology for the
recorded music industry. The ability to cheaply and instantaneously store and
distribute digital files changed the scale, pace, and patterns in which artists release
music and fans discover and enjoy it, regardless of genre or prominence. We left a
world where the flow of music is controlled by corporate empires like the major label
system and terrestrial radio, and entered one where any musician could create
global ground swell through direct to fan distribution, social curation, and
discovery.
The sharing of data has become a hallmark of a Web 2.0 world where we now use
the web as a participatory platform, and the separation between user, operator, and
content creator has become increasingly narrow. The collaborative nature of web
introduced the world to egalitarian concepts, like net neutrality and open source
culture, that stressed the decentralization of resources and opportunities. These
ideas lead to the creation of new business models centered around providing low to
no cost infrastructure (bandwidth and storage capacity) to the masses. Also,
participatory circulation points such as Facebook, Twitter, blogs, and other news
outlets have become powerful bridges in connecting fans to music more easily and
efficiently than ever before. So now, instead of being hostage to the economic and
spacial constraints of pre-Web music distribution, artists frequently utilize freely
available filesharing tools in conjunction with these circulation points in hopes of
reaching the billions of web users around the world.
Just as the railway system didn’t introduce movement or transportation to society, the
business strategy of releasing music for free wasn’t introduced by filesharing. Giving
out “freebies” has been a marketing practice of successful businesses since the
beginning of time, and the music industry is no exception. But, flesharing and the
global connectivity of the internet completely changed way musicians and record
companies do business.
The music industry has always promoted its products wherever its market (music
listeners) consume music. For years, this was done primarily on the radio and at
clubs and discos, through giving select station personnel and DJs free music to play
in promotion of upcoming albums and shows. This limited version of music-sharing,
evolved first through the message of consumer level sound recording technology.
Cassette tapes allowed DJs to create and distribute their own “mix-tapes”, showing
off their mixing skills, their party atmosphere, and their musical selections. From a
social perspective, although the public could now record bits and pieces from shows
on the radio, and share their favorite songs with their peers, the DJ curated tapes
remained the most popular, being dubbed and re-circulated thousands of times.
Soon, as more and more music was consumed via mixtape, many record labels
began directly supplying these mixtape djs with promotional songs.
Throughout the 1990s the proliferation of DJ mixtapes reached itʼs peak. Sean
“Puffy” Combs, then a burgeoning executive at Bad Boy Records, advanced the
practice of music sharing by creating an Official Bad Boy Mixtape Series, compiled
by the best mixtape DJs at the time. Through this freely released series, Combs and
his artists were able to release ʻfreestylesʼ over popular songs, their new singles, and
other fan-centric material without having to pay hefty distribution and licensing fees;
sacrificing immediate revenue for mass exposure. This exposure and popularity lead
to great success for Bad Boy artists both in selling show tickets, merchandise, and
commercial albums.
Unfortunately, the symbiotic relationship between major label and music-sharing
came to a screeching halt during the internet revolution. Mixtapes became so
popular in the black market and on the internet at the turn of the century, that instead
being a platform for free DJ expression and music promotion, they became
competitions for who could break the most “exclusive” songs. DJs began stealing
masters from studio sessions, and with the help of the growing popularity of file
sharing peer-to-peer networks like Napster and the drastic decline in industry
revenue, the stigma against mixtapes and the free exchange of music continued to
grow. This growth culminated in 2007 with the FBI raid of an Atlanta DJ collective
called The Affiliates, lead by DJs Drama and Don Cannon. The irony of The Affiliate
raid was that despite “illegally” duplicating thousands of mixtapes in their studio
offices, Drama and Cannonʼs tapes had reached such notoriety, that at the time of
the raid they were engaged by a number of artists to release free tapes, on their
behalf, in the streets and online. Thus although the FBIʼs persecution of the mixtape
industry had a chilling effect on the mass popularity of unauthorized compilations, the
message of music sharing was undeniable. The internet had taken the popularity of
music sharing to new heights, where although music revenue was on the decline, a
new breed of connected artists were utilizing free music sharing to further their
careers.
The most obvious example of an artist whoʼs benefited from the message of
filesharing is 50 Cent. Like many artists since the decline of industry revenues, after
being prevented from releasing his album, 50 was soon released from his distribution
deal. Exhibiting the “Do It Yourself” attitude of the Web 2.0 climate, 50 assembled a
team capable of producing an album on their own, and distributed a set of
commercial quality “street-albums” on the web and through the black market. This
direct-to-fan strategy sky rocketed him to prominence and a well documented deal
with Eminem. As the internet entered more homes, 50 Cent we able to completely
redefine the blue print for artist success in the Web 2.0 world: produce, promote, and
distribute album-quality releases, which successes can be quickly leveraged into tour
revenue, record deals, and album sales. In essence, it was the message of
filesharing, the new speed, pace, and pattern of music distribution and discovery,
that enabled this music community and created this new blueprint.
Since the rise of 50 Cent at the turn if the century there have been many new
innovations in filesharing that have redefined the pattern in which music is
distributed, redistributed, and discovered online. In the currently over-crowded music
space, many artists have found relevancy through releasing both polished individual
songs and official longer offerings directly into the market. We refer to these
releases as “fluid” as they are intended to flow freely around the web and enjoyed in
a variety of different offline music players. In order to achieve this fluidity, both
established and upcoming artists rely on a combination of storage infrastructure and
circulation points. Storage infrastructure (including: hosting companies which provide
storage and bandwidth to web domains, cyberlockers which provide low cost basic
services to end users, and storage sites, which provide a deeper user experience for
uploaders and downloaders) is the backbone of online music consumption. Artists
are able to upload songs and compilations to a storage service under their direction,
and use circulation points (blogs, online magazines, and social media) to point to a
linked address or widget where consumers can access song streams and/or
downloads. The PROTECT IP bill, in its current form, threatens to destroy this
balance, which enables artists to release music directly into market. By extending
infringement liability to infrastructure and linking websites, they have unfairly widened
the label of piracy to include any artist, fan, or publication who chooses to participate
in direct to fan culture.
Web 2.0 music filesharing has enabled artists to release professional quality music
directly to world at lightning speeds. As consumers, were are living in a golden age of
information where the collaborative nature of the web has given us a wealth of
circulation tools, helping us to filter the terabytes of music released every day into an
appealing narrative. This is the message of filesharing that should be protected by
legislation at all costs, even at the relative expense of the larger copyright holders.
We are in no way ignorant to the illegal use of filesharing infrastructure and
link-circulation sites in disseminating music strictly intended to be sold through
conventional means, but as even the largest record labels utilize direct-to-fan
releases and infrastructure, clearly the PROTECT IP bill other IP infringement
enforcement laws need to be reconsidered. Our proposal is for the Senate draft IP
legislation at the web-engineering level: carefully defining safe harbors for storage
infrastructure and circulation points and enforcing the existence of in-house and
crowdsourced security measures to protect the intentions of every copyright holder,
not merely those with a lobbying budget.