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Bringing P2P in from the cold

Chris Castle catches up with El Reg

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Interview Attorney Chris Castle has worked for the original Napster ("one of the greatest inventions of the 20th Century"), Snocap and in digital licensing for Sony and A&M. In the first installment of our annual catch-up, he wondered whether Google may have annoyed so many rights holders that it's rethinking its strategy. Here, he talks about how he tried to bring P2P in from the cold at Napster, then Snocap.

Has the rhetoric changed much recently? Ten years ago everybody knew structure of the music business would change - particularly the role of intermediaries. But every day I read somebody say that any copyright intermediary between the artist and the public is evil?

That's a very 1999 view of the world. It's true record companies were the voice of the music industry once. But as more and more artists are owning the copyright to their sound recordings, and are entering this world of taking on more responsibility of distributing their own works, the “Them” is “Us” now.

It's not quite so easy for the self-appointed consumer advocates to trash copyright owners any more, because the world has changed. It was easy for the “consumer” groups to go after the record companies, that is very well-trodden ground for consumer groups accustomed to dealing with exploding cars and asbestos. They tried to apply those same tactics to music because the “advocates” saw a huge audience they could try to attract to their cause and politicize.

Some Internet messiahs tried to do the same from a commercial point of view—remember the “MP.com Manifesto”? If you read that now, it’s quite striking how similar some of these attacks are to that Manifesto. You see remnants of those tired old canards on certain email lists and academic ruminations.

It’s becoming increasingly common for individual artists to own their own works. Artists are waking up to what's being done to them online. I have artist clients who are mystified that Megaupload and Rapidshare are selling their stuff - like in a classic counterfeiter model. These sites take their recordings, sell downloads, keep the money, and don't even think about paying you. Many are conveniently located in countries that don’t care much about IP rights and it is very hard to use legal means to stop them.

This is also, of course, why the so-called “fifth principle” of the FCC’s “Net Neutrality” rules is so absurd — if you can’t “discriminate” between illegal and legal content, what does “nondiscrimination” even mean, and how in the world will an individual artist afford the adjudication necessary to determine whether content is legal or illegal?

This is the job of collectives and intermediaries. Arguing that “Big Music” is somehow anti-consumer is quite a bit different than arguing that “Big Pharma” is anti-consumer. “Big Music” has its flaws, but it actually represents people. ASCAP, BMI, SESAC, MCPS-PRS, SACEM, GEMA—all these organizations represent songwriters. “Big Pharma” represents stockholders, not creators.

Another thing that happens to artists who get further and further into doing it themselves is that they often find themselves spending more and more time with the business of music and less and less time with the music.

It’s each artist’s decision when, if and which intermediaries they want to align themselves with — but if they do, I think that decision should be respected. Otherwise it’s like telling workers they can’t have unions because “Big Labor” is anti-consumer. You don’t see people stealing from Tesco because they object to “Big Labor”. Why should they be able to steal music because they object to Big Music?

Not everyone follows Professor Lessig's every word. At In The City in Manchester one manager was hearing the Pirate arguments for the first time. He couldn't believe someone was standing in front of him advocating copyright reduced to five years.

I think that Dick Augustsson aka Rick Hawkwing (or anyone else) talking a five-year copyright is kind of a joke. We have a five-minute copyright, now. That's how long it takes for something to be burned and put on a P2P network — and you’ll never get it completely off that network. Copyright can be five or 5000 years, it doesn't really matter. The actual term is five minutes.

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