Guest comment: Why music can’t ‘just be free’

JupiterResearch VP and research director Mark Mulligan specialises in music for the Forrester-owned agency. In this essay, reproduced from his journal, Mulligan argues against the emerging notion that music should be free without labels and creators getting paid…

“The French music industry body Société civile des Producteurs de Phonogrammes en France (SPPF) is suing four US-based developers of P2P applications, including the BitTorrent client Vuze, Limewire, Morpheus and Shareaza, as The Register reports. (The latter is the one that is stimulating vitriol in the tech blogosphere as its development is supported by open source development platform SourceForge.) Under newly revised French law the US, companies can be tried in the France as their applications have not implemented filtering mechanisms to block out copyrighted material.

“A couple of arguments are being leveled at the SPPF – the first that these applications aren’t designed for copyright infringement; it’s not the fault of the developers that they are being used as such. This argument, of course, has been since around the original Napster (NSDQ: NAPS) trial. I’m sorry, but it just doesn’t wash. However much there is legitimate usage, the vast majority of usage is not legitimate. All the developers need to do is support their claims of innocence by embedding filtering mechanisms into their apps. If they counter-claim that this would restrict the liberty of their users, then they can’t any longer argue that they don’t support illegitimate usage of their technology.

“Another argument being aired is that the music industry should stop being so hung up on trying to get paid online, indeed one story even referred to “the music industry’s obsession with copyright”. That’s like saying “the car industry’s obsession with cars”. Copyright is the oxygen of the music industry. Without it, there is no industry. Sure, there may be cases for changing some industry practices, but copyright remains the essence of making money from music.

“Music cannot just be ‘for free’ anymore than cars or houses can ‘just be for free’. If people aren’t paid, they don’t make the product. Sure music will still exist, but you’ll swap nicely programmed download stores and well stocked high street stores for buskers and millions upon millions of artist pages, all clamouring for your attention. Perhaps that sounds appealing? The problem is, most of them would sound a fraction as good as they would if they’d been able to give up their day jobs and been given proper equipment, studio time, mentoring and artist development support. And even those that would still manage to sound okay would struggle to find their way to your PC or mobile screen as they wouldn’t have any marketing support to help them get there.

“I’ll close with an account of how we first ended up with music copyright collection (via Germany’s Gema royalty collector), which says as much to today’s ‘music should be free’ argument as it did then, 150 years ago…

‘In 1847, the composer Ernest Bourget visited the Paris Concert Café Ambassadeurs in the company of his colleague Victor Parizot. At the time, Bourget was a popular composer of chansons and chansonnettes comiques. Among other pieces, the orchestra played the music of Bourget. When the waiter presented the composer with the bill for the sugared water that he and his colleague had consumed as the fashionable luxury drink of the period, Bourget refused to pay claiming that the orchestra had repeatedly played his music – without paying anything: and so [took the] sugared water in return for playing his piece. The dispute between the composer and the owner was brought before the court. On 8th September 1847, the Tribunal de Commerce de la Seine prohibited the owner from playing works of the composer without his consent. The exclusive right of the author to public performances that had been anchored in the French law of 1791 was thus put into practice for the first time. And on 26th April 1849 the Cour d’Appel de Paris sentenced the owner of Ambassadeurs to pay compensation – i.e. in this case royalties – to Bourget.'”

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