Pirated music: good thing, bad thing or nothing?

[San Antone]

If Tori Amos lived exclusively off selling her music she'd be right. But...

51-year-old Tori Amos has taken the No. 1 spot on People With Money's top 10 highest-paid singers for 2015 with an estimated $96 million in combined earnings.

The American singer-songwriter-pianist has an estimated net worth of $275 million. She owes her fortune to smart stock investments, substantial property holdings, lucrative endorsement deals with CoverGirl cosmetics. She also owns several restaurants (the "Fat Amos Burger" chain) in Washington, a Football Team (the "Newton Angels"), has launched her own brand of Vodka (Pure Wonderamos - US), and is tackling the juniors market with a top-selling perfume (With Love from Tori) and a fashion line called "Tori Amos Seduction".

Seems to me that she can afford losing some hundred, or even thousand, bucks a year because some people value her music high enough to want to listen to it but not that high as to want to pay a few bucks per individual songs or complete albums. 

EDIT: possessive pronoun corrected

Of course this is the standard comment that minimizes the damage of illegal file sharing: Those millionaire songwriters and artists, who cares if they lose out on a few dollars because some poor guy illegally downloads their music. Blah, blah, blah.

However, the reality is quite far from that description.  For every Tori Amos who has had much success and monetary reward there are literally tens of thousands of songwriters who have made some money from their music but nowhere near enough to make them "well off".  Also many publishers are struggling, as are some smaller independent record labels.  Every cent of revenue they can achieve from sales of their product is necessary to their long term survival.

Also, all the musicians that are used on the recording dates, the secretaries who work at the publishers and record labels, all these people are effected (in a bad way) by every downward tick in the financial health of the music industry.

[Madiel]

Well, let's say John Doe is sued by Abracadabra Records because he downloaded Symphony No. 165.32 by Max Mustermann, performed by Juan Tal conducting the Middle-Of-Nowhere Philharmonic Orchestra from Youtube as mp3 instead of buying the CD they released and ask from him $10, the price of the CD.

In the court, he says:

Your honor, they offer for sale a physical CD, I downloaded an mp3. Now, they don't sell mp3s. Why then should I have to pay them for something they cannot sell me?

Your honor, furthermore, I ask them to prove beyond any reasonable doubt that the mp3 I downloaded was ripped from their CD. On Youtube it was labelled Symphony No. 165.32 by Max Mustermann, performed by Juan Tal conducting the Middle-Of-Nowhere Philharmonic Orchestra, but how do I, or they, or anyone else for that matter, know it is not in fact performed by Takahichi Kokorichi conducting the Symphonic Orchestra of Kalahari and recorded by Mwahaha Records? And if the latter be the case, why then should I have to pay them for something they cannot sell me because they never recorded it?

Would he be dead wrong or spot on?

You already know the answer to that.  That is an utterly bullshit argument on both counts. You don't seriously believe that a recording in one format is fundamentally different to a recording in another format do you? It's the same recording.

And you also don't seriously believe that it wouldn't be bloody easy to prove that a recording matched another one.

[Florestan]

Seems to me if you think she was talking specifically about her own music, you've missed the point utterly.

Ah, I see: she was in fact talking about those poor devils who don't own smart stock investments and extensive property holdings and who gain a pittance solely by singing and performing, in which case I agree with her stance.

[Madiel]

Ah, I see: she was in fact talking about those poor devils who don't own smart stock investments and extensive property holdings and who gain a pittance solely by singing and performing, in which case I agree with her stance.

*rolls eyes*

How much do you value this artist is what she said, yes. She didn't say "how much do you value me"?

Your deep need to constantly suggest that someone's wealth is relevant to the ethics of this is pretty pathetic. And how the blazes do you think she got the money to do those things? From her music. When she started she did literally hundreds of concerts, insanely long tours.

[Madiel]

MORE IMPORTANTLY, YOUR SOURCE IS A SATIRE SITE!

Oh for fuck's sake. Do you not read?

[Florestan]

You already know the answer to that.  That is an utterly bullshit argument on both counts. You don't seriously believe that a recording in one format is fundamentally different to a recording in another format do you? It's the same recording.

I'm not talking about the recording. If they sell only the CD, and he downloaded the mp3 and they want him to pay them $10 then they want him to pay for something they cannot sell him. 

And you also don't seriously believe that it wouldn't be bloody easy to prove that a recording matched another one.

Bloody easy? In most cases the total time of the CD doesn't match the total time of the Youtube file, to begin with. Secondly, you will have to bring an expert, or more, to certify that the playing has exactly the same dynamics, pitch, tempi and intonation for each and every second of music on both the CD and the mp3 file. Now, that would be a dream job for not a few GMGers for whom comparing recordings is their second nature. 

[Florestan]

MORE IMPORTANTLY, YOUR SOURCE IS A SATIRE SITE!

It took you two posts to realize that. 

[Madiel]

I'm not talking about the recording. If they sell only the CD, and he downloaded the mp3 and they want him to pay them $10 then they want him to pay for something they cannot sell him.

You don't buy a CD because you want a nice shiny silver disc. You buy a CD because of what's recorded on it. You don't download an mp3 file because you like the name of it, but because of what you think it contains.

Why is it that you argue in this fashion? I'm serious. Every time I've seen you get in an argument, with me or with anyone else, you seem to be trying to raise as many disingenuous arguments as possible, as if you're an amateur lawyer in a courtroom and this is a game.

[Gurn Blanston]

The situation you're describing with 500 sets is to my mind quite different from everything I've been talking about, because I've been very focused on the situation where buying the music and remunerating the creators of it is possible. You're now describing a situation where buying the music is not possible.

Honestly, I don't know exactly how the law deals with this. I personally think that copyright should have a certain "use it or lose it" element, but I don't think that's actually the legal situation. The tricky thing for the company in a situation like this would be showing any damage from the breach of copyright, because that's a crucial component of suing someone. If no sale was possible, there's a good argument that the loss suffered by the company was zero.

I will admit to having downloaded some music for free because it has been impossible to buy. Not just expensive, but simply not obtainable in a transaction. That is a situation I ethically allow myself, but that is my personal ethics.

I agree it is a different situation, but in Classical, especially after you get past the initial rush of buying every warhorse who trots down the road, it is a situation frequently encountered; as often as 2 or 3 times a month, for me! It is also the only situation which ever made ME download something, although they were legal downloads in most cases, but even so. Like some others have expressed here, I just prefer the physical media and its associated goodies, and will usually exhaust all possibilities before resorting to downloading anything.

I've considered why this may be, and I suppose it is that downloaded media makes me feel like I don't have anything. I put no value on it at all, and this is despite the fact that I immediately rip and then store every CD I buy, so I essentially do all my listening from what is de facto the same source. I guess it is because I'm old and have a different set of values which I will likely never shake off.

[Florestan]

You don't buy a CD because you want a nice shiny silver disc. You buy a CD because of what's recorded on it.

How do you know that? Maybe I buy it for the art cover only. You are a lawyer: is there any way you can prove beyond any reasonable doubt why I bought this or that CD?

Every time I've seen you get in an argument, with me or with anyone else, you seem to be trying to raise as many disingenuous arguments as possible, as if you're an amateur lawyer in a courtroom and this is a game.

Oh, wait, you mean this is not a game? You mean this is serious? You mean anyone in the world at large cares a fucking shit about what is been argued here? Wow, how cool!

[Madiel]

And with that, I am most definitely out of here. Because I'm not here for your amusement, Florestan, I'm here to discuss an issue.

[(poco) Sforzando]

I think b) is legal everywhere (undeserved speculative windfall profits are after all what our civilization is based on ), c) will probably get the person who uploaded it into legal trouble almost everywhere and the person who downloaded it at least in some jurisdictions, and a) depends but is often legal per "fair use".
For burned copies (similar to case a) in Germany "fair use" included the right to give away a copy to a friend (it's illegal to sell it to him, though, and it would certainly be stretching it to give away 100 copies to your 100 friends). It seems also perfectly legal to rip a disc I bought to my computer and sell the original used. (Something I consider morally rather fishy, at least if done a scale of 100s or 1000s of discs.) There is a legal difference to computer software here where such a procedure is clearly illegal. For music it's only illegal to sell copies.

Very well, but per san Antonio, in the US at least, "the law is very clear: aside from fair use, which generally means quoting small parts of copyrighted material for the purposes of scholarship, critical review, etc. which is allowed, all other consumption of the intellectual property is prohibited unless you pay for it.  It is common for file-sharing advocates to attempt to make a fair use argument.  These specious arguments have been deemed unconvincing by every court that has reviewed these cases. Scenarios trying to make the case for hardship are irrelevant."

And so in the US it would seem that (a) is illegal as is (c). But (b), which strikes me as more heinous than the others, is perfectly legal.

[Florestan]

And with that, I am most definitely out of here. Because I'm not here for your amusement, Florestan, I'm here to discuss an issue.

Am I the one hindering you to do it? You know, there's an ignore button out of there.

[(poco) Sforzando]

The situation you're describing with 500 sets is to my mind quite different from everything I've been talking about, because I've been very focused on the situation where buying the music and remunerating the creators of it is possible. You're now describing a situation where buying the music is not possible.

Honestly, I don't know exactly how the law deals with this. I personally think that copyright should have a certain "use it or lose it" element, but I don't think that's actually the legal situation. The tricky thing for the company in a situation like this would be showing any damage from the breach of copyright, because that's a crucial component of suing someone. If no sale was possible, there's a good argument that the loss suffered by the company was zero.

I will admit to having downloaded some music for free because it has been impossible to buy. Not just expensive, but simply not obtainable in a transaction. That is a situation I ethically allow myself, but that is my personal ethics.

Please don't go so fast, as this is becoming interesting, and I think situations in which the music is simply not available have to be considered. You say you ethically allow yourself such downloads, but why should that be any more legal simply because it's your personal ethics? I see no difference here between your action and what san antonio is calling a specious fair-use argument.

Consider situations also in which an LP was issued, is obviously out of print, was never issued to CD by the record company, and private individuals have restored the LP to CD format. Legal or not? What if I as a private individual transferred the LP to CD, cleaned up all the pops and clicks, and made my own CD? And then perhaps I decided the LP was taking too much space, so I kept the digital files, scanned the album cover so I have the notes, and donated the LP to my local library (where they in turn sold the LP for $.50 to a vinyl die-hard)? Legal?

Would it make a difference if the LP was issued by a going concern like Sony, EMI, Decca, etc., or by a company no longer in business?

And let's go further. Would it make a difference if the restorer gave copies away of this CD or sold them (perhaps if only a nominal charge to cover the discs, envelopes, and postage - or perhaps a higher amount to make a profit)?

For example, is this guy legal?
http://www.78s2cd.com/

[jlaurson]

The situation you're describing with 500 sets is to my mind quite different from everything I've been talking about, because I've been very focused on the situation where buying the music and remunerating the creators of it is possible. You're now describing a situation where buying the music is not possible.

Honestly, I don't know exactly how the law deals with this. I personally think that copyright should have a certain "use it or lose it" element, but I don't think that's actually the legal situation. The tricky thing for the company in a situation like this would be showing any damage from the breach of copyright, because that's a crucial component of suing someone. If no sale was possible, there's a good argument that the loss suffered by the company was zero.

I will admit to having downloaded some music for free because it has been impossible to buy. Not just expensive, but simply not obtainable in a transaction. That is a situation I ethically allow myself, but that is my personal ethics.

"Not available legally / conveniently" does not, as we agree, equate "OK to take otherwise". We may make such decisions, as you point out, ourselves on a case-by-case basis... but we shouldn't forget that we're walking a thin line there and that, technically, what we do is still wrong and wouldn't pass either legal or Kantian muster. (And I'm certainly not guilt-less, vis-a-vis some producers of famous US and British TV series whose ware was not available in my location at my time of choosing.)

Meanwhile, there IS an "use it or lose it" element in the European legislation on copyright at least... although it's very liberally treated: As long as it's available SOMEWHERE in the EU, for example, and in SOME form, it's 'used'. (So, pack it in Cyrillic and stash it away on some Romanian website for extra confusion, and you've got your "use" it aspect covered... while sitting on it to do... well, whatever pleases you. Maybe wait for interest/demand to accrue. Or just be a jackass about it... whichever better suits the company's strategy.

[jlaurson]

For example, is this guy legal?
http://www.78s2cd.com/

Since copyright expires (despite all the Mickey-Mouse and Beatles-inspired legal attempts to avoid that from happening)... so with 78s you're safe. LPs... it depends on the age, obviously. There's a copyright on liner notes, theoretically, at least... ditto the cover-art... but if the music's has expired, so will (most likely, but I'm not an expert on the arcane of copyright law) the surrounding stuff's. Finally: A remastering itself has legal protection... so when Membran (or Dante or Iron Needle etc.) just takes another company's cleaned up material, even if that material is long out of copyright protection, it's still not legal. (Just too damn expensive to take them to court over it, given the small amounts of $ involved in this business.)

[Florestan]

In the US the law is very clear: aside from fair use, which generally means quoting small parts of copyrighted material for the purposes of scholarship, critical review, etc. which is allowed, all other consumption of the intellectual property is prohibited unless you pay for it.  It is common for file-sharing advocates to attempt to make a fair use argument.  These specious arguments have been deemed unconvincing by every court that has reviewed these cases.

Scenarios trying to make the case for hardship are irrelevant.

Do you happen to know if there are any available data about how many people have been sued in US for uploading to, downloading from, Youtube or other sites, and how many of them were eventually fined, and the average amount they had to pay?

[Gurn Blanston]

Do you happen to know if there are any available data about how many people have been sued in US for uploading to, downloading from, Youtube or other sites, and how many of them were eventually fined, and the average amount they had to pay?

Google it up and let us know. We're curious...

[Florestan]

Google it up and let us know. We're curious...

I did. I found only what can happen to someone in this or that country, but nothing about what did actually happen to a flesh-and-blood person.

[(poco) Sforzando]

Since copyright expires (despite all the Mickey-Mouse and Beatles-inspired legal attempts to avoid that from happening)... so with 78s you're safe. LPs... it depends on the age, obviously. There's a copyright on liner notes, theoretically, at least... ditto the cover-art... but if the music's has expired, so will (most likely, but I'm not an expert on the arcane of copyright law) the surrounding stuff's. Finally: A remastering itself has legal protection... so when Membran (or Dante or Iron Needle etc.) just takes another company's cleaned up material, even if that material is long out of copyright protection, it's still not legal. (Just too damn expensive to take them to court over it, given the small amounts of $ involved in this business.)

Thank you. That doesn't answer all my questions, but it's a start so I'll ask a couple more. (And in these next cases it's a subject of real interest to me.)

One of my concerns has always been the use of recorded music in plays. For example, I saw a production of Noel Coward's Hay Fever recently where the director played several Coward songs as mood-setting music before and after each act. Absent permission from the record company (and which would probably require payment of a royalty), I wonder whether this falls under fair use. It is clearly not fair use in the usual sense of quoting for a review or that sort of thing; on the other hand each excerpt was only a few minutes. But it's rare to attend a play where some kind of recorded background music isn't used.

The published script for Michael Hollinger's play Opus, which is about a string quartet performing the op. 131, requires in addition to the normal royalties a CD costing $35 that is to be used during each performance of the play.

I myself was writing a play in which I wanted to use the entire Cosi fan Tutte overture. Obviously the Mozart in itself is in public domain, but no recording is, and besides I wanted to repeat the entire sonata-allegro section following the introduction until the coda. So I finally decided to input the entire overture into Finale and create a WAV file from that. Clearly this is perfectly legitimate.

But how about this: in another part of the play I would love to use about 15 seconds from Stravinsky's Symphony of Psalms, where the score is still under copyright. If I create a Finale file of this excerpt and make a WAV from it, am I within the fair use laws?