Good News! Ten Commandments Reduced Now to Only Nine
By John Mellencamp - Musician & Activist - Posted to the
Huffington Post
I love music. I love all kinds of music... old music, new music, country
music, jazz, and popular music. I care about the future of music and about the
well being of those individuals who will be making it in the future. Music has
been my passion my entire life and I have been fortunate to never have worked a
"straight" job because of it. I am one lucky guy to be able to pursue what I
love and to have gotten paid for it. Who could complain?
I've been doing this a long time and I'm confounded by the apathy of those
who have participated in music-related successes and are now witnessing the
demise of the entertainment business as it has existed since the beginning of
recorded sound and moving pictures. So here I plan to ask some questions and my
hope is offer a solution to the problem.
Tell me where, under today's conditions of de facto indentured servitude,
will the new artists come from? If I were a young songwriter today, I would
definitely be looking for another way to earn a living. The same would go for
the young screenwriter or novelist. And what about the guy who only had one or
two hit records 10 or 50 years ago? What happens to this guy who depends on that
income to support his family if people are stealing those songs now? Tough luck,
right? This is the thread of failure in front of all artists today. Art
exclusively as a hobby -- that's the "new model" it seems. And to all you
bloggers who have prophesized that this new way is going to somehow provide
sustainable careers? Your prophecies did not and will never come true. If there
is the occasional sparkle of success, it usually turns out to be nothing more
than a novelty, not a new business model. We need to restore intellectual
property to its rightful owners and reconstruct the business that has lost
thousands and thousands of jobs plus billions of dollars in revenue.
Why is thievery allowed to continue on the Internet? And why do people think
it's so impossible to correct? Right after radio was invented, they played music
and sold advertising. Then it dawned on some: "Hey, they're playing our music,
and they're selling advertising on our backs; we should get paid." So performing
rights organizations like ASCAP and BMI were established with the express
intention of protecting the intellectual property of artists who create it.
These, in essence, turned into collection agencies. They were able to collect
money from radio stations, jukeboxes, movies, television which were all then
fledgling delivery systems, and provided a livelihood for their members. They
were able to keep track of what was being played and sold all over the world
with pencil and paper. The government held these systems responsible for keeping
track of their respective broadcast neighborhoods. They turned new delivery
systems into multi-billion dollar businesses. That was progress.
But where are ASCAP and BMI today on the new delivery system -- the Internet?
Where are the record companies? Where are the book publishers? Where are the
unions to which we pay dues that are supposed to protect actors, writers,
songwriters, and producers? And, most importantly, where's the government?
Apparently everybody's too busy making excuses and shrugging their shoulders to
realize their gravy train has gone up the waterspout.
Yes, there's a mechanism called SoundExchange that collects statutory
royalties from satellite radio, Internet radio and other sources of streaming
sound recordings but it's powerless to deal with those who have simply helped
themselves to the intellectual property of others. It's a laudable effort but
not the answer to this problem.
There is a law that exists to deal with copyright and the Internet that dates
back to the good ol' days of 1990s: the Digital Millennium Copyright Act. It was
supposed to bring U.S. copyright law into the digital age but it included
something called "Safe Harbor Provisions" that basically says that each artist
is responsible for retrieving his own merchandise and shutting down anyone
stealing their property, which is kind of a joke. The law was written at a time
when there were only a couple of kids running a handful of file trading sites in
the world and was created to protect internet service providers from being sued
if they facilitated the distribution of pirated material. This law now,
unintentionally, allows big search engines -- like Google, Yahoo, Bing, etc. --
to be the equivalent of a department store as both provide and sell many
services and products. Let's say that Ralph Lauren has his merchandise in
Macy's. If someone shop lifts it out of the store, he's told, "Hey Ralph, your
stuff's being stolen off of our shelves. You better go try to collect your money
for it. It's not our problem or responsibility since all we do is make your
stuff available to non-paying customers..." In other words, under the Safe
Harbor Provisions, search engines behave like unpoliced department stores where
anyone can steal whatever they want with no real threat of significant
repercussions.
There's an added bonus, even better... on top of everything, they're
collecting advertising money from Madison Avenue. So what's happening is your
search engine leads you to an illegal downloading site where you can download --
you name the artist -- their entire catalog and, at the same time, see products
and services offered for sale ranging from soft drinks to pornography and,
adding insult to injury, that merchandise appears to be endorsed by the artist
to whom it's attached. The artist, who is already being stolen from, now appears
to be shilling for these products. The gangsters are making money, but the
artist? Squat. (And I do mean gangsters.. this is not just a couple of kids file
trading anymore, these are criminals, quite literally.)
To put it plainly, radio kept track of their playlists, record stores kept
track of their sales, each movie theater counted tickets, each bookstore kept
track of books sold, and why? Because the law required it and the manufacturers
demanded it. And so the same should apply to search engines. They should be
governed in the same manner but they're not. The Safe Harbor Provisions allow
intellectual property to be stolen because the search engines are not held
accountable. There's actually Safe Harbor litigation going on right now between
Viacom and YouTube. YouTube is claiming that it had nothing to do with the
posting of copyrighted material because Safe Harbor puts the burden on whoever
did the posting. But all of that is really a hair-splitting, distraction in the
grand theme of things.
Why is it that people feel that this problem is unconquerable? Often, when I
talk about it, I just get an eye roll and the comment, "It's just gone too far
now. This is just the way it is." No, this is not the way it has to be. This is
the way we've allowed it to become, this faulty "new model." Recent history has
shown that things can, in fact, change. When online gambling, once a huge and
thriving underground business, was determined to be illegal sites went out of
business almost overnight. Why? Because legal gaming enterprises and government
regulation brought the hammer down where it hurt the most - credit card
companies were told they could not be part of this dubious trade and they
complied immediately. In the same way, if anti-piracy legislation were the order
of the day servers, wherever they may be including the mythical "cloud," could
and would be shut down thanks to technologies that have been developed and
successfully employed during the fight against terrorism. The means to get this
done actually exists; what we're lacking, at the moment, is the will to do it.
My answer, and it's really quite logical, is that current search engines and
any that emerge in the future (the brazen thieves at Pirate Bay have smugly
threatened to start their own search engine) need to be held responsible in the
same fashion as any other business in this country. The law needs to be changed.
ASCAP, BMI and intellectual property creators need to work to get rid of the
antiquated Safe Harbor Provisions. We need to write a new law that should
declare, something to the effect, that if you own and operate a search engine,
you cannot allow criminal activity to take place in your virtual town.
The entertainment business has been criminally assaulted by wrong-headed
thinking that says we need to keep up with the Internet. No, search engines need
to abide and adhere to the laws that have governed this country for over 200
years. It's a moral imperative. Thou shalt not steal. Ring a bell? Calling it
progress, ol' Hoss, don't make it right.
