published in the New York Times, August 11, 2009
After you’ve read that article, read this.
My response in an email sent to the author of the article:
Dear Mr. Schwartz:
Tenenbaum is a scofflaw and his lawyer Nesson presented no legal defense at all. These points are incontrovertible.
International copyright law is clear, and practically every major government in the world is signatory to it. How can somebody who presents no legally acceptable defense expect to prevail?
If what Tenenbaum did (and millions of other people continue to do every day) is to be declared legal, it will require the legislatures of the world’s governments to pass new laws and draft and ratify a new international treaty. There is no remedy through the courts at any level.
Thus, Nesson is making a fool of himself; it’s clear he already has a fool for a client.
The central issue here is not Tenenbaum or scofflaws like him. The central issue is the music, and that means protecting the songwriters and musicians who make the music, so that they can earn a living. That’s why all the relevant laws and international copyright accords were passed in the first place–to ensure that the musicians can continue to earn a living through collecting royalties on their creations.
Before the present era, roughly around 1920, music was essentially either folk music or traditional music. Folk music made no money, and traditional music relied on patronage–the commissions of kings, courts, churches or wealthy corporations who paid composers, orchestras and performers to perform in court (think Bach or Haydn). However, in the 20th century, the concept of commercial music became possible. This was because of phonograph records, radio and films, but also because of legal frameworks that made it practical to license the use of music and collect royalties. The new commercial music industry became a great engine for economic growth, and a tax base that contributes to economies and well-being the world around.
What the common person fails to realize is that songwriters and recording musicians in the context of commercial singles and albums don’t get paid wages or a salary. Time and time again I have heard ignorant people say “Those musicians already got paid when they recorded the song. They don’t deserve to ‘double dip’ and make any more money off of that. Heck, I get paid an hourly wage for my job at the office and I don’t expect royalties on that”.
The reality is that musicians go deeply in debt to make each recording, and it is only through “micropayments” or a few cents’ royalties on each licensed sale or broadcast, that they earn any gross income at all and have any chance of getting out of debt and turning a profit. And this means that there has to be a legal mechanism for them to collect those few cents every time they are entitled to. They rely on the RIAA, and non-profit organizations like BMI, ASCAP and a plethora of organizations in other countries, to represent them, collect the fees, and distribute them to the songwriters and musicians.
When this system breaks down, as it does with P2P sharing schemes, real musicians can’t feed their families. More and more serious full-time musicians are giving up on their careers, forced to take day jobs and stop creating new music, because their ability to eke out a living a few cents at at time is eroded down to a situation where making music will always lose money for them.
Tenenbaum and Nesson are incredibly arrogant, cruel people who want to enjoy all the great commercial music, and even claim to love the musicians who create it, yet want to facilitate robbing the musicians blind and leaving them indigent.
It’s time to save the music. It’s time to send a clear message to all the millions who steal and pirate music on peer-to-peer networks on the Internet. Grow up, get responsible, and develop some ethics. Pay for the music, because the musicians you claim to love are dependent upon you to do it.
John Schwartz wrote back to tell me that he appreciated my letter, and that he recommended that I send it to firstname.lastname@example.org as a letter to the editor for publication.
I did, but I learned that the New York Times expects letters to the editor to be 150 words or less, and mine was 650 words. I don’t think I wasted any words, so let me append my addendum after I heard back from John Schwartz:
John Schwartz wrote me to say:
“…both Professor Nesson and Joel Tenenbaum believe that musicians should be paid for their work, as my story stated. What they oppose is the structure of copyright law, which they believe produces unjust results; they recommended that I read Lawrence Lessig’s CODE and Remix to get a sense of how to build a network that rewards creativity while restoring fair use and other doctrines that, they believe, gets closer to the balancing act first set by the Founders. Of course, Lessig does not defend music piracy, so their recommendation undercuts their own case.”
To this, I reply:
Lawrence Lessig is not a songwriter or a composer. He has never had to feed his children on songwriting royalties. He gets his salary as a tenured university law professor.
He has not had to spend a hundred years working with his fellow songwriters and composers to lobby for and construct a legally recognized framework under which they could earn a living, prosper, and contribute to the American economy.
Therefore his opinions about how musicians should earn a living are irrelevant.
You might as well accord Karl Marx the authority to speak for all the workers of the world. We know how that one worked out.