Cyberlaw -- The Example Of Music

Cyberlaw – Evolution, Revolution or Retrofit? By Christopher V. Langone I’ve been disagreeing with Frank Easterbrook my entire professional career as a practicing lawyer, so as I (re)embark on my academic career, I guess there’s no good reason to change now. In Cyberspace and the Law of the Horse, Easterbrook mocks the idea that there can be such a thing as “Property in Cyberspace.”1 As Lessig explains, Easterbrook’s view is that the law of cyberspace is nothing more than “torts in cyberspace, contracts in cyberspace, property in cyberspace, etc.”2 Lessig disagrees, explaining “there is an important general point that comes from thinking in particular about how law and cyberspace connect;” specifically, “the limits on law as a regulator” and the “techniques for escaping those limits.”3 Lessig claims cyberlaw is valuable because all law can draw from its lessons, using the “commodification of music” as a case study, this paper argues Lessig is correct. And whether we learn from these lessons is one of the central legal, cultural and policy questions of the Internet, and society, today.

                                                             1 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 210 (1996) (comparing cyberlaw to “horse law” in that while there are numerous legal issues that arise in the context of horses – people being kicked by horses, horse racing law, care of horses by veterinarians – there is no “law of the horse,” which would inevitably be “shallow and miss unifying principles.”) Lawrence Lessig, Commentaries – The Law of the Horse: What Cyberlaw Might Teach, 113 Harvard L.R. 501, 502 (1999).

2

Id. at 502 (these techniques include using “constraining tools” other than law, such as architectures, norms and markets). 3

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The ‘Private Property’ Sign in Cyberspace There was a big high wall there, that tried to stop me A sign was painted, said ‘private property’ But on the backside it didn’t say nothing That side was made for you and me. – Woody Guthrie, “This Land is Your Land”4 For Frank Easterbrook the question of regulating cyberspace is easy, “develop a sound law of intellectual property and then apply it to cyberspace.”5 But here, he is far too facile; or perhaps, formalistic. As Professor Radin explained – in critiquing Easterbrook’s intellectual cousin, Richard Epstein6 – “about property…he is an unabashed conceptualist and formalist.”7 Easterbrook and Epstein are conceptualists because they think “there is a concept of property that, in fact, is the right one or the only one.”8 And they are formalist because they think “the concept of property can be applied formally, i.e., logically and mechanically, to yield results that should be obvious to readers

                                                             4 (See disk, track 1). For fun, I have decided to use I-Tunes to “soundtrack” this paper. Sometimes, the tracks have direct relevance to the point being made; other times, they are only conceptually or metaphorically related. I am allowed, of course, under my I-Tunes license to burn CDs as I have done. I have several versions (including some great covers) of this classic folk masterpiece, I decided to use the 1944 Smithsonian version here because it contains the somewhat controversial “private property,” verse. http://en.wikipedia.org/wiki/This_Land_Is_Your_Land.    5

Easterbrook, 1996 U. Chi. Legal F. at 208.

Easterbrook is a graduate of the University of Chicago; Epstein is the Director of the University of Chicago’s “law and economics” program. http://en.wikipedia.org/wiki/Richard_Epstein. Both are associated with the “law and economics” movement. http://en.wikipedia.org/wiki/Law_and_Economics.

6

Margaret Jane Radin, Symposium on Richard Epstein’s Takings: Private Property and the Power of Eminent Domain: The Consequences of Conceptualism, 41 U. Miami L. Rev. 239, 239 (1986).

7

8 Id. Easterbrook’s conceptualism, for instance, is exhibited by his query: how can we tackle the question whether new technologies have made copying too easy when we “have not solved the problems posed by yesterday’s technology?” (Easterbrook, 1996 U. Chi. Legal F. at 208); his reference to the “correct allocation” of domain names (Id. at 212); and talks about having “answers” to making “rights more precise.” Id. at 208.

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and legal decision makers.”9 But what if there is no one, “correct,” concept of property? (Or “intellectual property” for that matter.) As Radin explains, “not only is property vague and evolving; it is also essentially contested.”10 For instance, French anarchist Pierre-Joseph Proudhon famously declared “property is robbery.”11 But even mainstream legal commentators are fractiously split on the idea of what constitutes property. As Professor Mossoff has explained, there are essentially three theoretical conceptions of property in Anglo-American law: the exclusion theory; the “bundle of rights” approach; and what Mossoff labeled the “integrated approach,” which essentially combines to two former approaches.12 Central to all conceptions is the “right to exclude.” The reason it is not, as Easterbrook contends, “easy” to apply “current property principles”13 to cyberspace is because the raw material of cyberspace is information. And information is non-rival, which means that one person’s use does not prevent another’s. Given this, a conception of property that depends on a “right to exclude” does not make any sense. There is no reason to exclude                                                              9 Id. (also stating “Epstein’s tacit acceptance of conceptualism and formalism goes a long way to explaining why he seems so blithely to believe that the results many readers find breathtakingly wrong are just obvious to rational people”). From my experience with Easterbrook the same thing can be said – I find him breathtakingly wrong and he finds me irrational; or, as he once said to me in oral argument, “right out of the 60s”). 10

Id. at 241.

Pierre-Joseph Proudhoun, What is Property? Or, an Inquiry into the Principle of Right and of Government (1840). It’s not hard to imagine what Proudhoun would say about the law and economics movement given he said the following about economists in the same treatise: "I have been pitiless in my criticism of the economists: for them I confess that, in general, I have no liking. The arrogance and the emptiness of their writings, their impertinent pride and their unwarranted blunders, have disgusted me. Whoever, knowing them, pardons them, may read them.” 11

Adam Mossoff, What Is Property? Putting the Pieces Back Together, 45 Arizona L.R. 371 (2003)(“What is property? Is it merely a linguistic term, denoting a complex aggregate of separate rights that have been merely bundled together for ease of reference? Is it a matter of only excluding other people from one’s possessions? Or is it something more – a concept that represents an integrated unity of the exclusive right to acquire, use and dispose of one’s things?”) 12

13

Easterbrook, 1996 U. Chi. Legal F. at 210. 3 

 

anyone from using a non-rival good, as there is no zero-sum dynamic. The more people that can use information can gain utility from it; and since one person’s use does not compete with another’s there is no need to exclude anyone, and certainly no basis to apply legal rules founded on a so-called right to exclude – at least not based at the level of “use.” The rejoinder, of course, is that “use” is not the issue – creation is. In other words, while one could agree that unlike a law of trespass there is no need for exclusion-based property laws to prevent misappropriation of “my land” in cyberspace, the information will not be created without a property-like protection that permits economic exploitation of the information-based work. This, of course, is the rationale behind copyright and most “intellectual property.”14 But there is another approach, one akin to the folk tradition in music, which Radin calls “progressive naturalism.” Creationism vs. Evolution – in the “property” context My computer is future shockin’ Download this and you’ll start talkin’ upgraded you’re now walkin’ compatible with all that is rockin’ comin’ on fast it’s gettin’ digital it’s so huge like a spiritual rippling out to every individual this is life it is a miracle Evolution has exponential timing it’ll be Half as long ‘til the next breakthrough that blows our mind It’s up to the people to brave on with experimentation; Move forth the species by using our imagination – 311, “Evolution” (Track 2) As noted earlier, Radin sees property law as “evolving” and articulates a view she calls progressive naturalism: one could better respect the deep moral significance of some property by becoming a progressive naturalist. A progressive naturalist would say that there is a best conception of property, but we haven’t yet reached it. The history of changing property notions is describable as a history of rejecting bad parts of the institution and substituting better ones – a process that can continue indefinitely. This view would allow us to suppose we have reached a point in history when we can recognize that exclusionary rights…are wrong, and have always been wrong.15                                                              14     See, e.g., Harper & Row, Publishers v. Nation Enters., Inc., 471 U.S. 539, 558 (1985)(“by establishing a marketable tight to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”)   15

Radin, 41 U. Miami L. Rev at 243. 4 

 

Radin’s analogy to evolution is by no means a new one; in 1920 Judge Jethro Brown wrote in the Yale Law Journal, “I am in agreement with those who speak of the ‘evolution of law.’ I find in legal history an inevitable tendency to change, a continuing adjustment to environment, and a process of survival of the fittest, in the course of which the rules of human conduct less fitted to a particular milieu are squeezed out of existence and give ways to rules best-fitted for that milieu.”16 We are currently observing such a changing milieu now, as Benkler argues in The Wealth of Networks, we are seeing a shift away from an industrial economy to a “networked information economy.” But the “weary giants of flesh and steel”17 don’t want to release their hold on power. As Benkler explains, “the economic and social forces are pushing at each other in opposite directions, and each is trying to mold the legal environment to better accommodate its requirements… we stand at a point where information production could be regulated so that, for most users, it will be forced back into the industrial model.”18 Benkler too, analogizes to evolution, citing Steven J. Gould’s theory of “punctuated equilibria” – i.e., evolutionary change takes place in rapid busts, separated by long periods of stasis.19 The problem with common law is that it evolves too slowly – the kind of ‘phyletic gradualism’ that Gould and Eldridge were critiquing. The answer then is not to slow the development of cyberspace by forcing it back into the industrial model (and its concomitant body of common law: torts, contract and property). Rather, it is to speed the                                                                                                                                                                                                  16

W. Jethro Brown, “Law and Evolution,” 29(4) The Yale Law Journal 394, 398 (1920).

See, John Perry Barlow, “A Declaration of the Independence of Cyberspace,” http://homes.eff.org/~barlow/Declaration-Final.html. 17

Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom, (Yale University Press 2006) at http://www.congo-education.net/wealth-of-networks/ch-01.htm 18

19 See, http://en.wikipedia.org/wiki/Punctuated_equilibrium; citing and linking to: Niles Eldredge and Stephen Jay Gould, 1972. "Punctuated equilibria: an alternative to phyletic gradualism" In T.J.M. Schopf, ed., Models in Paleobiology. San Francisco: Freeman Cooper. pp. 82-115. Reprinted in N. Eldredge Time frames. Princeton: Princeton Univ. Press. 1985.

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development of law, by forcing it to adapt to the fast-changing world of the Internet, supercharging precedent and allowing the kind of “rapid busts” (as Benkler says – the ‘shock’ to the system) that results in meaningful change. Under the industrial model, Easterbrook is clearly right – intellectual property was required in order to incentivize the creation of information-laden value. But under the emerging networked information economy, he is clearly wrong – as Benkler convincingly demonstrates. Indeed, intellectual property rights themselves were the legal mutations spawned by required adaptations to changing social and cultural environments, usually spurred by technological developments. But just because an adaptation worked in the past, does not mean it will continue to work into the future. So before we look forward, let’s first look back – at the fossil record, so to speak – to see that creators will indeed create in the absence of the limited monopoly-grant of so-called intellectual property rights. The species to be examined is music and musicians. In his very insightful article “Whose Music Is It Anyway: How we Came to View Musical Expression as a Form of Property,” Professor Michael Carroll explores the history – from the ancient Greeks to the present day – of music.20 He concludes, “removing copyright protection from musical works and sound recordings would not eliminate professional music making. On the contrary, historical evidence strongly suggests that the demand for the services of a class of professional musicians and composers would be sufficient to induce society to find alternative means to enable this group to practice its art.”21 He explains: “By taking a panoramic view of the history leading up to the current controversy, I seek to create room in the discussion for cooler consideration of fundamental change. Historical evidence demonstrates that Western society has                                                              20 Michael W. Carroll, Whose Music Is It Anyway? How We Came to View Musical Expression as a Form of Property, 72 U. Cin. L. Rev. 1405, 1412 (2004)(describing competing positions on whether music should be protected by copyright law and how much). 21

Carroll, 72 U. Cin. L. Rev. at 1412. 6 

 

conceived of music’s social role and the roles of those who create and perform music quite differently over time. Rather than assume that music is a form of property and that the only challenge is how to protect it against new threats posed by digital technology, we should acknowledge that other means of stimulating musical creativity are feasible and were successful under different material and cultural conditions.”22 From the Harmony of the Spheres to Metal Machine Music Ancient Times Oh, the streets of Rome are filled with rubble, Ancient footprints are everywhere – Bob Dylan (“When I Paint My Masterpiece” – Track 3)23 Pythagoras, who according to legend was inspired by the sounds made by blacksmiths hitting anvils with hammers of different weights,24 discovered the consonant musical relations between strings of difference lengths. From this, he deduced that each of the planets, based on its distance from the Earth, produced a different note – the Musica Mundana, or harmony of the spheres. On this view, music was part of a larger set of mathematical, harmonic relations that govern the physical world. In Lessig’s terms, there was a musical architecture, based on mathematics, and music was viewed as “a force of nature not susceptible to individual claims of ownership.”25

                                                             22 Carroll, 72 U. Cin. L. Rev. at 1416. Given the fact there are several other Dylan songs on my little CD, I have chosen to use a stunning version of this song from the Grateful Dead. 23

 

John M. Steadman, The ‘Inharmonious Blacksmith’: Spencer and the Pythagoras Legend, 79(5) PMLA 664, 665 (1964). See also, http://www.gresham.ac.uk/printtranscript.asp?EventId=462 (“hammers which gave the consonance of an octave were found to weigh in the ratio 2 to 1. He took that one which was double the other and found that its weight was four-thirds the weight of a hammer with which it gave the consonance of a fourth. Again he found that this same hammer was three-halves the weight of a hammer with which it gave the consonance of a fifth.”) 24

25

Carroll, 72 U. Cin. L. Rev. at 1421. 7 

 

Moreover, music was very heavily regulated (more by ‘norms’ than ‘law’) and while youth underwent compulsory music education to help nurture their soul, among intellectuals “the performance of music outside the home was considered vulgar and inappropriate for any but slaves.”26 As Aristotle, perhaps anticipating karaoke, wrote: “no freeman would play or sing unless he were intoxicated or in jest.”27 In sum, “music was not a form of property in the ancient world. Instead, it was a gift from the gods expressed in a set of musical conventions to which composers and performers were expected to adhere and which reflected the greater mathematical order of the cosmos.” Nevertheless, we see the Lessig factors starting to emerge in the context of music, at least with respect to architecture and norms. While the Greeks may have developed some form of musical notation, it was lost during the Dark Ages. Medieval Times The only important thing these days, is rhythm and melody. Rhythm ...and melody – Big Audio Dynamite II (“Rush” – Track 4) During this time musical notation was (re)developed, thus enabling the objectification of musical expression by permitting music to “take on an external manifestation that could be read as well as heard.”28 Using notation, Pope Gregory wrote down certain chant melodies and the “Gregorian” chant was born.29 By the eleventh century, staff notation was developed. Because staff notation freed music from dependence on oral transmission, as musical historians Donald Grout                                                              26 Carroll, 72 U. Cin. L. Rev. at 1430-31. 27

Carroll, 72 U. Cin. L. Rev. at fn. 96.

28

Carroll, 72 U. Cin. L. Rev. at 1438.

29 The Gregorian chant became the melodic basis of a great deal of Western Music. The chant contained in the above-image, Gaudeamus omnes, can be found on the accompanying disc as track 5, which is performed in a more traditional version. Track 6 contains a Mozart interpretation of Dies Irae and an even more modern interpretation of a liturgal chant, Sinead O’Connor’s Kire Arye is track 7.

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and Claude Pasilica stress, its development was “as crucial for the history of Western music as the invention of writing was for the history of language.”30 This technological change – which enabled new architecture (or musical “code”) – was a “system shock” that precipitated one of the first evolutionary developments in the commodification of music. Nevertheless, early staff notation did not specify the duration of notes, so rhythm was still subject to interpretation. The late Middle Ages also saw the rise of polyphony,31 which involves the use of more than one melodic line, either in harmony or in different directions like a classical Bach fugue. When Pope Clement V moved his seat to Avignon in the fourteen century, secular French music started to influence the liturgy with polyphonic compositions. The Church resisted this move, and Pope John XXII commanded in his 1324 Bull Docta Sanctorum Patrum that “no one shall henceforth consider himself at liberty to use polyphony in the singing of canonical Office or in solemn celebrations of the Mass.”32 But the “increasing divided and corrupt Church authorities were losing control over the liturgy and the congregation: liturgical polyphony continued to flourish.” Norms, Lessig would say, were changing, and papal “law” could not constrain them. By 1364, during the pontificate of Pope Urban V, composer and priest Guillaume de Machaut penned La Messe de Notre Dame, which became the first officially-sanctioned polyphony in sacred music. Reactionary Popes, however, seem back in vogue.33 Here, over 600 years ago, we see norms and law competing over new musical architecture in a manner very similar to the disputes that exist on the internet today.                                                              30 Donald J. Grout & Claude V. Palisca, A History of Western Music, at 57, as cited in Carroll, p. 1441. 31

http://www.stanford.edu/~jrdx/medieval.html

32

Carroll, 72 U. Cin. L. Rev. at 1443 & n. 161 and http://en.wikipedia.org/wiki/Polyphony).

33 “Pope to purge the Vatican of modern music,” The Telegraph 11/25/07, www.telegraph.co.uk /news/main .jhtml=/news/2007/11/20/wpope120.xml (“the Pope is considering a dramatic overhaul of the Vatican in order to force a return to traditional sacred music…the Pope wants to widen the use of Gregorian chant…The International Church Music Review recently criticized the choir, saying: ‘the singers want to overshout eachother, they were frequently out of tune, the sound uneven, the conducting without any artistic power, the organ and organ playing like a second-rank county parish…”)

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Guilds and Jongeluers Histories of ages past; Unenlightened shadows cast; Down through all eternity; The crying of humanity. 'Tis then when the Hurdy Gurdy Man; Comes singing songs of love, – Donovan (“Hurdy Gurdy Man” Track 8) “The two secular developments most important for the commodification of music were the emergence of the troubadours34 in the latter Middle Ages and the formation of musicians’ guilds. Although the troubadours and their ‘songs of love’ signaled the emergence of self-aware singer/songwriters, who paid to have their compositions transcribed, they did not assert proprietary claims to their music.35 Musicians’ guilds, in contrast, assert nascent proprietary interests in that only guild members could publicly perform music within city limits, a right vindicated by law. So here – to again apply the Lessig factors – we start to see the emergence of market and law, in addition to norms and architecture, as influencing the direction music was taking. As medieval cities grew (a literal change in the Lessig factor, architecture), “public performance of music came to rest in the control of a guild of specialized performers who had the exclusive right to perform music at public gatherings within the city walls.”36 This, notes Carroll, was another important development in the commodification of music – “Although the exclusive right to public performance appears to be more a regulation controlling labor than one creating property                                                                                                                                                                                                  In Germany, troubadours were called “jongleurs” (derived from the Latin ‘joculare’ – to entertain). In order to merit the label, norms required they know: how to invent, to make rhymes, to acquit himself well as a swordsman; know how to play drums, cymbals and the hurdy-gurdy well; know how to throw up little apples and catch them on the point of a knife; imitate the songs of birds; perform tricks with cards and jump through hoops; play the cittern, handle the clavichord and string the seven-stringed rote; to accompany well with the fiddle and to speak and sign pleasantly. (Carroll, citing Raynor, note 168). Jongleurs were seen as politically and religiously subversive. One medieval theologian described them as “ministers of Satan” and royalty issued decrees setting boundaries for acceptable topics of composition. “Though enjoying great liberty from political regulation and a variety of social conventions, jongleurs lived a marginal existence with little prospect for financial security.” (Carroll, 72 U. Cin. L. Rev. at 1446.) 34

35

Id.

36

Id. 10 

 

rights, musical notation was still not widely in use for secular music and therefore control over the musical laborer was a form of control over the music itself.”37 The guild structure was devised mainly to allow local musicians to secure themselves from economic (or market) competition by traveling minstrels and jongleurs. While this improved the social status of musicians, it affected the music in two ways: at one level, it retarded development as the “guild structure, with lengthy apprenticeships, appears to have stultified experimentation”; on the other hand, it allowed musicians to hone their craft and develop increasingly complex polyphonic music.”38 A good example is the Bach family, which led many German guilds and, of course, produced a famous composer known as Johann Sebastian. The guild use of law to limit markets to protect themselves against competition from the jongleur is, as argued in more detail later in this paper, is similar to the way that the RIAA is trying to protect themselves from competition by modern indie bands. The Renaissance Then she opened up a book of poems; And handed it to me Written by an Italian poet; From the thirteenth century. And every one of them words rang true; And glowed like burnin' coal Pourin' off of every page; Like it was written in my soul from me to you, Tangled up in blue. – Bob Dylan (“Tangled Up in Blue” – Track 9) The Renaissance, of course, was ushered in by the invention of the printing press, a technological development whose effect on copyright and the development of intellectual property law has been much heralded and examined.39 As Professor Henry Perritt, Jr., Professor of Law at                                                              37 Id. at 1446. 38

Id.

39

    Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984) (discussing how copyright protection was not necessary prior to the printing press because hand copying literary works was too costly and time consuming to pose a threat to authors' interests). See also Marshall Leaffer, Protecting Author's Rights in a Digital Age, 27 U. Tol. L. Rev. 1, 3 (1995) (examining history of copyright law); Yuri Hur, Note, Tasini v. New York Times: Ownership of Electronic Copyrights Rightfully Returned to Authors, 21 Loy. L.A. Ent. L.J. 65 (2000) (discussing development of copyright law).

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the Chicago-Kent College of Law, has explained: As technology changes, it increases and decreases the risks of certain kinds of market failure, altering the incentives to create and perform music.”40 He explains how before the printing press one had to be in the presence of the composer performing to hear the music, but the printing press – through sheet music – allowed performance of another’s music without any contact between composer and performer. And before sound recording, music consumers had to be present at a live performance. With each advance – phonographs, magnetic recording, digital recording, and digital compression resulting in increased bandwidth – “raised questions about the proper balance between law and technology in preserving appropriate incentives for producing and consumer music.”41 But, explains Perritt, “too often, observers only focus on the possibility for technological advances to reduce incentives to create and distribute music. Insufficient attention usually is given to the tendency of some of the same technological advances to increase incentives to create and produce because they reduce costs of original producers.”42 For instance, between 1809 and 1820 Beethoven arranged 176 Irish and Scottish folk songs43 for the Scottish publisher, George Thomson, who wanted only the best composers and poets to work on the project. An example is “Oh! Who, my dear Dermot” – the melody is ‘Crooghan a Venee’ with lyrics by William Smyth. The song is about the Irish Parliament’s decision in 1800 to abolish itself after corrupt members were bribed by Lord Castlereagh’s ‘English gold,’ and speaks                                                                                                                                                                                                   

Henry H. Perrit, Jr., New Architectures for Music: Law Should Get Out of the Way, 29 Hastings Comm. & Ent. L.J. 259 (Spring, 2007) at 261. 40

41

Id.

Id. at 277 (also noting “technologies for musical instruments changed the style of performance and created a niche for composers as distinct from singers). Printing technology changed the way music was disseminated, enlarging the possibilities of experiencing music for listeners beyond live performances. The development of the phonograph record influenced audience choice in favor of singers like Caruso, whose voice range matched the audio bandwidth capabilities of early phonographs.”)

42

43

Lewis Jones, “Roll Over Beethoven, Dig that Celtic Folk,” http://www.tradsong.org/Beethoven.pdf 12 

 

metaphorically though the eyes of ‘Norah,’ who represents Ireland.44 Beethoven designed these setting for amateur performers and some of them were recorded by folk-balladeer Richard DyerBenett,45 including ‘my dear Dermot, which is track 10 on the accompanying disk. The Beethoven project demonstrates, in a significant way, a merging of folk and high culture – indeed, perhaps these compositions can be characterized as the first ‘mash ups.’ But more significantly, they demonstrate the importance of the public domain and how culture, heritage and history become fused in music. It was the technology of the printing press that allowed this, much like the technology of You Tube, computer-recording and mixing software such as ProTools and social-networking sites like MySpace have dramatically changed the need for economic and human capital previously needed to record and promote music.46 Metal Machine Music “I have heard this record characterized as "anti-human" and "anti-emotional." That it is, in a sense, since it is music made more by tape recorders, amps, speakers, microphones and ring modulators than any set of human hands and emotions. But so what? Almost all music today is anti-emotional and made by machines too.” – Lester Bangs47 Metal Machine Music was an album by Lou Reed, widely reputed to have been made as a begrudging fulfillment of his contract to his label but argued by some, including legendary rock critic Lester Bangs, to be a brilliant genre-creating advancement in noise-rock.48 Disputes with record                                                              44 Lewis Jones, p. 2. 45

Carol Weisbrod, Metaphoric Folk: A Comment on Law and Music, 20 Carodzo L. Rev. 1439 (May/July

1999). 46

Perritt, 29 Hastings Comm. & Ent. L.J. at 293-296.

47

   http://www.rocknroll.net/loureed/articles/mmmbangs.html. Listen to track 11, and decide for yourself – the clip is only a bit over a minute – imagine 34:04 straight minutes. Actually, even more, the LP was rigged up with a groove that looped back into itself, thus causing the track to go on for infinity.  

Evan Swandy, “Decades later, Lou Reed's 'Metal Machine Music' is re-discovered,” www.popmatters.com at http://www.chron.com/disp/story.mpl/ent/5307924.html. Some would dispute whether an album like Metal Machine Music is even “music”, as Carroll explains, “Music has no intrinsic 48

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labels are legendary in rock music – from the Sex Pistols’ EMI (track 12), to the Floyd classic, Welcome to the Machine (track 13) – and, until now, artists have been essentially dependant on the label’s A&R (artist and repertoire) departments to ‘discover’ and promote them. This was, as Perritt explains, important to reduce “search costs” for consumers and connecting artists with fans.49 But those search costs don’t exist anymore, as “new technologies profoundly change the possible ways in which the functions performed by existing intermediaries can be performed and therefore threaten the embedded capital of major record labels. That is why they have been so militant in trying to slow the uptake of the technologies.”50 Evolution…Revolution “There was music in the cafes at night; and revolution in the air” – Bob Dylan51 Benkler says we are at a crucial time in history, as he says in the title to chapter 1 of his book, The Wealth of Networks, a moment of opportunity and challenge, which he describes at the end of Chapter One, as follows: We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will in some significant measure depend on policy choices that we make over the next decade or so. To be able to understand these                                                                                                                                                                                                  definition. It is a cultural category consisting of any sounds that those in a society or culture designate as ‘music’ instead of ‘noise.” (72 U. Cin. L. Rev. at 1417). 49 Perritt, 29 Hastings Comm. & Ent. L.J. 259 (Spring, 2007)(“Major record labels exist to perform intermediation in music markets as they have been structured by past technologies. They represent organizational capital devoted to recruiting new talent, vetting new music, overseeing the recording process, promoting new products, and distributing product to consumers.”)

  50

   Id. See also, Brett J. Miller, The War Against Free Music: how the RIAA Should Stop Worrying and Learn to Love the MP3, 82 U. Det. Mercy L. Rev., 303, 312 “the industry has not embraced new MP3 technology even though it could “virtually eliminate…marketing costs” because of fear from competition from independent bands). (p. 321-322); Andrew C. Humes, The Day the Music Died: The RIAA Sues its Consumers, 38 Ind. L. Rev. 239, 239 (2005)(noting over 9000 lawsuits have been filed against downloaders by the music industry).  51

Given the duplicate reference to this song, track 14 is to the Indigo Girls version. 14 

 

choices, to be able to make them well, we must recognize that they are part of what is fundamentally a social and political choice - a choice about how to be free, equal, productive human beings under a new set of technological and economic conditions. We have looked back at history, and seen how Lessig’s factors – market, architecture, norms and law – apply not only to the world of cyberspace, but to law and society generally. They represent not the law of the horse – but the law of the horse & carriage, and horseless carriage – the law of change. It can advance; or it can restrain. The primarily legal, cultural and policy issues that we face are whether we are going to advance law and culture, or retrofit the internet to fit old, outdated law and systems, as Frank Easterbrook seems to want. I have looked at music as a case study, showing how the Lessig factors have influenced the evolution of music over time. The lessons learned are that we should not show the pace of change to that of the law. Rather, as Perritt explains, “copyright law should be interpreted, or amended if necessary, to permit informal, non-commercial file-sharing – conduct which will occur in any event, regardless of what the law says, and which the law should not discourage because it actually encourages further creative effort. He also states, ‘Regardless of what the law says, however, the music industry will not prevail in the end, any more than protectors of the status quo have prevailed in the past. Technology and market forces will win. Consumers and producers of music – and society – will benefit.”52 He concludes, and I agree: the bleak scenarios painted in public policy venues by the music industry about the risks posed by the new technologies are considerably exaggerated. The reality is that the new technologies do not threaten the position of musicianship and other creative actors but are rather the embedded capital of an elaborate, sophisticated, and arguably bloated system of intermediation that was designed to deal with old technologies. The system that the RIAA and MPAA are suing school children to protect is obsolete, and never had much to do with creative effort.”53                                                              52     Perritt, 29 Hastings Comm. & Ent. L.J. 263.  

Perritt at 262, citing Jessica Litman, Sharing and Stealing, 27 Hastings Comm. & Ent. L.J., 1, 2 (2004)(existing law was designed to facilitate a world in which music distributors needed a substantial capital investment in printing presses, trains or trucks, warehouses, broadcast towers or communication satellites).

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