Copyrighting the Digital Stream

In the wake of Nigel Godrich and Thom Yorke’s removal of Radiohead albums from Spotify, Sasha Frere Jones of the New Yorker has a nice interview with Damon Krukowski (Galaxie 500, Damon and Naomi) concerning questions of digital copyright and the music industry: Sasha Frere Jones, “IF YOU CARE ABOUT MUSIC, SHOULD YOU DITCH SPOTIFY?,” 19 July 2013. Links to various other key articles—the Radiohead announcement, David Lowery of Cracker’s screed against fans downloading free music—in the piece.

I love these reflections on the history of recording, technology, copyright, intellectual property, and art from Krukowski:

I’ve always been fascinated by the fact that at the beginning of recording, the courts ruled that you couldn’t copyright a given performance of music because it was nothing more than vibrations in the air—and who can say they own the air? As I understand it, the history of record “labels,” “mechanical” royalties, album art, and all the rest began as an end run around that rather pataphysical ruling. Recording companies were looking to copyright all they could, since they couldn’t lay claim to the immaterial vibrations at the core of their products.

So here we are at the other end of that long century of cylinders, records, tapes, and discs, with more or less the same problem that started it all—because who can say they “own” a digital stream of information, any more than the air?

Spotify, Pandora, Apple, and the rest are doing what they can to make us believe they own that stream, just as recording companies did by copyrighting all the ancillary bits of albums. But they don’t. Just like the record companies at the beginning, they own only the means of delivery, not the music itself.

I think if we accept that basic truth—that no one can own the stream, any more than the air—then we can start from a more solid place to rebuild how and why we might compensate those involved in the production of recordings.

…But back to your question about the world ahead—I feel a bit like those Marxists when they are inevitably asked, O.K., but what happens after the state withers away? It certainly sounds like a dodge, but I sincerely think we won’t know till it happens. Or then again, maybe it has already happened, without our realizing—recordings are already essentially worthless in the marketplace—and it’s these heavily capitalized businesses like Apple, Spotify, and Pandora that are setting the agenda for the new order. I don’t think they have a claim over it, not in a moral and I am pretty sure not in a legal sense, either—but they are the ones loudly staking the claim. What I’m thinking is, What if we call their bluff? Maybe no one will end up being paid for recordings, in that case—but as it stands, musicians aren’t anyway.

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