Grooveshark, music distribution and culture in a digital media environment

One of our coursework assignments was to write and record an academic audio essay covering an issue in copyright and / or piracy. Here is the question I chose to work with:

Choosing one case study around ‘Piracy’ or ‘Copyright’ (such as a particular website) analyse the social, cultural, political and historical contexts that have impacted upon it.

Grooveshark logoI’m posting it here, first, because I am proud of my work (and I got good feedback for it), and second, because I want to share my views on the issues of copyright and music distribution – and Grooveshark’s case study is a very good example for where I think we are headed. In essence, my position is not whether someone has or does not have the right to use authored content; I am questioning the whole notion of copyright protection. After all, it was only introduced a few centuries ago, in a very specific context, and maybe it is not serving the same purposes anymore – because the society, business and technology environment have changed greatly since.

I’m including here both the audio version and the transcript. The audio version has interactive referencing – whenever I mention a source, you can click on the timeline and see details about it.

Do you agree with me, or have a completely different idea about these issues? I’d love to hear your thoughts in the comments.

Grooveshark, music distribution and culture in a digital media environment (Transcript)

‘Over 30 million people use Grooveshark to listen to their favorite music, discover new bands, and share across social networks.
Grooveshark also serves as a powerful platform for artists to promote, market, and monetize their music.’ (Grooveshark 2011)

This is what the website Grooveshark.com says in its About section. Here is, however, what UMG Recordings, Inc. had to say about it and its use of Pre-1972 Recordings, in a 2010 Civil Action:

‘Defendant Escape Media Inc. owns and operates the website http://www.grooveshark.com […]. Through this website, defendant infringes UMG’s Pre-1972 Recordings by, among other things, reproducing and storing these copyrighted sound recordings on its own servers as part of its extensive catalog of infringing music […] Defendant does this without the approval or permission of UMG and without any payment to UMG.’ (County of New York 2010: 2)

There is clearly a conflict here. A modern, 21st century conflict between a global media corporation and an independent new website. Is this a classic copyright violation case, or there is something bigger at stake? We will explore the social, cultural, political and historical contexts of this commercial conflict, examine how they have impacted upon it, and discuss a possible solution beyond the current notions of ‘right’ and ‘wrong’, ‘legal’ and ‘illegal’.

UMG Recordings, Inc. is a subsidiary of Universal Music Group, Inc. – a key player in the music industry. Their whole business model relies on the notions of intellectual property and copyright protection laws. Since both Grooveshark and UMG are based in the USA, this case study is focusing on the US law definitions of intellectual property and copyright protection:

‘Intellectual property (IP) is an intangible creation of the human mind, usually expressed or translated into a tangible form, that is assigned certain rights of property.’ (US Legal 2010b)

‘A “copyright” offers protection for original works of authorship.  Copyright protection affords the author of a copyrighted work with specific rights that the author can give or sell to others or keep for him/herself.’ (US Legal 2010a)

Copyright protection also criminalises the use of creative works such as music recordings without the copyright holder’s authorisation (this is usually called a ‘license’). (US Legal 2010b)

This is how traditionally music companies have been operating and how their business has been protected by law for more than a century. Since the technology for recording and reproducing music was introduced, intellectual property and copyright protection in music have become a global, highly profitable business, regulated by a number of national and international legislative acts.

The inevitable problems in this business have, ironically, come from the same technologies that enable them – the tools to capture, copy and distribute the products of creative work. The inventors and developers of audio recording technology have often been portrayed as people ‘sponging upon the toil, the work, the talent, and genius of American composers’ (Burkan 1909 cited in Lessig 2004: 56). Modern business dictionaries, too, define ‘piracy’ as the ‘illegal copying of a product such as software or music’. (Bloomsbury Business Library 2007: 5700)

UMG is attacking Grooveshark on the grounds of copyright violation and unauthorised commercial use of music tracks that UMG exclusively manages. But how did Grooveshark get copies of this music in the first place? Here is a helpful abstract from UMG’s Civil Action:

‘Using its own proprietary software application known as “Sharklet,” defendant enables and encourages its users to upload digital copies of the Pre-1972 Recordings which defendant then copies to its servers.’ (County of New York 2010: 4)

However, we shouldn’t forget the ease of creating new, identical copies of digital files – so it is very unclear how digital copies should be treated in relation to copyright and intellectual property; it is also highly problematic that the copying and sharing of digital files is still assumed to be equal to ‘theft’.

The current definition of ‘piracy’ dates back to the times when all copies of creative works were stored in a material form, and creating a physical copy of someone’s work was, indeed, equal to ‘theft’. But since the introduction of digital storage and transmission, the need has grown to re-define what copying in the digital world means, and to ask whether it is always equal to copyright violation. In 1998, a new act was passed by the USA Congress – the Digital Millennium Copyright Act (DMCA). It aimed to address some of these issues, and to try and draw a line between digital copying for the needs of transmission, and unauthorised use of creative works. (U.S. Copyright Office Summary 1998)

The importance of the DMCA can be illustrated with the following quote from Larry Lessig’s 2007 TED Talk:

‘[T]he architecture of copyright law and the architecture of digital technologies as they interact have produced the presumption that these activities are illegal. Because if copyright law at its core regulates something called ‘copies’, then in the digital world the one fact we can’t escape is that every single use of culture produces a copy. Every single use therefore requires permission […]’ (Lessig 2007)

The DMCA enabled service providers to continue operating, even though the current definition of ‘piracy’ suggested their automatic copying and transmitting of creative works was illegal.

As Paul Geller, Grooveshark’s Vice President of business development, said in a recent open letter to the music industry,
‘The DMCA’s Safe Harbor component encourages technology companies to innovate in hopes that they will eventually solve some of the problems that are plaguing content producers today.’ (Geller 2011 cited in Resnikoff 2011)

This is what keeps services such as Grooveshark and YouTube in operation. These services have licensing deals only for some of the copyrighted material they are storing on their servers. Here is YouTube’s position:

‘If you have content that others are uploading to YouTube, you should register it in a content ID system and then you’ll have the choice about how your content is used. And think carefully about the policies that you attach to that content. By simply blocking all reuse, you’ll miss out on new art forms, new audiences, new distribution channels and new revenue streams.’ (Stewart 2010)

Grooveshark and YouTube are taking a stance against the current, ‘traditional’, understanding of music licensing and intellectual property in general, and offering a different way to think about creative content. The technology behind these two services enables people to easily share, sample and use culture in a new way.

As Lessig argues in his 2007 TED Talk, laws are only valid in the temporal, cultural and technological context they were conceived. He calls for a shift in the understanding of audiovisual culture:

‘It is a literacy for this generation. This is how our kids speak. It is how our kids think. It is what your kids are, as they increasingly understand digital technologies and their relationship to themselves.’ (Lassig 2007)

In essence, Grooveshark and YouTube are changing the distribution model, shifting and diversifying the way people interact with music. They are shifting the focus from music being the product to music being a vehicle for a more diverse culture, and, why not, entertainment market.

So what could this change mean for the music business? One possible outcome is a change of monetary value – since identical copies of the songs are easily made available through digital distribution channels, music will probably lose on its value as ‘just content’. This would mean a shift from ‘music as a product’ to music as a cultural experience. In order to make a profit, an artist or creator will need to offer an experience which is unique and authentic. (Kelly 2008)

Digital copies and paying for content in its current form can be viewed as devaluing for both the artist and the listener. The artist doesn’t have control over his or her creation once it is digitised; also, a digital file offers very limited experience for the listener. Furthermore, a concert or live event generates much more value and impact per listener – resulting in higher profit margins for the artist and better experience for the listener’s money. This makes economic, as well as cultural sense. What doesn’t make much sense right now, are the accusations of traditional music businesses that digital culture is a threat to creativity, and the only way to keep creativity thriving is to protect it using the copyright laws. As Lessig suggests in his book ‘Free Culture’,

‘This is not a protectionism to protect artists. It is instead a protectionism to protect certain forms of business. Corporations threatened by the potential of the Internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them.’ (Lessig 2004)

Digital distribution has created a big shift in the music industry. Some choose to see it as a crisis; others embrace the opportunity to try something new. It can be a game changer for intellectual property. Digital content distribution is leading to a situation where, once something is created, it starts to exist in an almost ‘public domain’ environment – the author does not have control over his or her creation, and the whole notion of copyright and intellectual property becomes questionable. It brings us back to a few centuries ago, when ideas and creative works were available for all, no one owned them and anyone could benefit from or build upon them. This was the time when fairy tales and mythological creatures simply existed as part of the culture, no one claimed any ownership on them, and everyone could create their version of the stories. In its essence, culture is free and public, and in order to create the space for new ideas, we need to set the old ones free.

Do you agree with me, or have a completely different idea about these issues? I’d love to hear your thoughts in the comments.

List of References

Do you agree with me, or have a completely different idea about these issues? I’d love to hear your thoughts in the comments.

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7 thoughts on “Grooveshark, music distribution and culture in a digital media environment

  1. The problem is one of origins thinking. You see something very similar when people have a cow about both race and homosexuality as two examples. The presumption is that something is more ‘pure’ when you know the origin and that origin is presumed to be sacroscant. In naturalistic philosophies, homosexuality is but a copy of an original that has been put to a nefarious purpose that it wasn’t designed to perform. It take something that was ‘natural’ and makes it ‘artificial’, thereby devaluing or debasing the original. To be honest, I am wary of saying what I just said above, because I think that while it does shed some light on the situation, I would also caution against taking the situation out of it’s economic context because ultimately, it’s about the money involved and the royalties for artists and I don’t think it helps matters to Occultify the situation by doing to the digital realm what has been done to the markets that has brought our economy to it’s knees. It’s in essence very similar to derivatives and futures in that wealth is created out of ‘nothing’ and to say that a digitized copy is not a copy but a new kind of financial instrument from which to make more profit may be more dangerous for our economic infrastructure than you might seem to think.

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  2. If there is no author’s ownership, there will be no authors that would be able to live from their art, simply because they’d waste time and money but will receive nothing or very little in return.
    Art creation isn’t easy. It takes time and resources and it’s hard to do it in your spare time between your job(s).
    So… I can’t imagine truly a world in which no intellectual property exists, because the artist simply wouldn’t be able to produce high-value content but for me to a big extent the virtual world cuts the middleman – the company which takes most of the money and distributes and promotes the artist/the art. Cutting the hardware on the other hand cuts most of the expenses as well makes the income bigger but also provides options for many artists to come to light without the need of the companies, which is highly disliked to the said companies for obvious reasons and they are fighting it as much as they could.

    What angers me the most is the way “piracy” as a term is used and the way huge companies, making billions each year are ganging over singular persons, making huge lawsuits against them. It’s simply bullying and it is not acceptable. Instead of sticking to the same business model they should adapt… or simply die out… and so far I am not seeing much of adapting but a lot of pearl-clutching.

    There is a similar issue with the virtual libraries.

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    • A few notes re: your comment… (This turned out to be quite a long comment, but hey)

      1. Making art isn’t usually ‘wasting time and money’. It may be *investing*, but I don’t think creators would call it *wasting*. Creating art isn’t about factory production and engineering – it’s about experimenting and learning something. Most of the time art is about self expression – so you’re not *wasting* – ask any artist, they’d probably be doing what they are doing even if they were not getting paid. Maybe not at the same scale, but they’d be doing it. Because art is not something you *must* do. It’s something you *need to* do. It’s a way to express a feeling or an idea that’s buring you from the inside.

      2. I don’t think we can even talk about ‘easy’ or ‘tough’ when it comes to making art. It’s not rocket science. I don’t know about a whole lot of art forms that have *rules* you need to follow, otherwise your piece won’t count as art. I think as long as *you* identify it as something of aesthetic (and not primarily functional) value, and maybe someone else does, you can call it ‘art’. I really don’t buy into the idea of the ‘tortured artist’ who can’t afford to make his or her art. Self expression is a need, and you *find* a way.

      3. If we’re talking about art and its commercial value, as in entertainment (or the other forms commercial art can take), then it’s something designed and built for purpose. It’s an engineered piece of creativity.
      The difference between art and entertainment is, I think, marketing. And feedback. If you need to sell something, you need to care what people think about it. Some people would change their creation until it satisfies an audience willing to pay; others will just try a new audience over and over, until they *find* the people that appreciate what they have to say / sell.

      4. I don’t even know why we’re focusing so much on ‘art’. Art is not really the focus of my essay. My point has more to do with creativity, entertainment, and culture. And I think culture is not something just a chosen few are entitled to. Culture is what we all produce when communicating, when making jokes between ourselves, when sketching something on a wall on the street. It’s a means of communication, and if you find a way to make money out of it, go ahead, but that’s not the main idea.

      5. If you *are* making money out of culture artefacts, that’s great. There’s an endless number of ways you can make money / create value, and it doesn’t have to do so much with locking some idea into the concept of ‘intellectual property’.
      Intellectual property has turned into an arrogant way of saying ‘I am the only person who knows how to do this, and who is allowed to do it’. It comes from FEAR. Fear and the feeling of scarcity ‘Oh I’ll never have a better idea, let me do the most with what I have right now, and not bother with being creative anymore in my life’. Whereas if ideas and creativity are shared in a more free way, ideas develop, then grow old, then they are either brought back to life in some kind of a remake / remix, or they are retired. I see nothing wrong with retiring some ideas and making way for new ones. Most ideas are only valid in a very short space of time, because culture depends on context. A song someone composed and played in the 60s, and our parents were listening to, has one type of value for them, and a very different meaning for us.

      I do agree with your points about the ‘middle man’. The sales team / distribution channel, that used to be the one and only way for artists to reach an audience. We see this a lot – not just in the entertainment industries, but also in things like retail. Producers (factory or artists) are given awful terms of trade (rediculous contracts, cutting all but a very tiny amount of profit); distributors and retailers get the highest margins; also, in most sales and promotions, it’s not the retailer who’s ‘paying’ for the lower profits – it’s the producer whose share is being cut down. What they are doing though, is provide a guaranteed market for the products. So if a producer is willing to give away their marketing power to a big company, that’s what they choose to deal with.

      Also, on a more personal level, this comes down to fear and greed. If you only want to create a small business that you (and your family) can live from, you don’t necessarily need a big marketing channel – you can sell locally, know your clients in person and be happy. But since most people go into business ‘to make money’, they want to be and feel big. They don’t own their craft, they give away their values for a few extra bucks, and then they don’t have a business, they have a monster.

      Re: ‘piracy’ and the way the word is used by the big companies, especially in mainstream media, it’s just ridiculous. They are now using the concept of ‘fighting child pornography’ as a way to force these laws and regulations. I think what lies deep within is the fear that they need to change their way of doing things, and they don’t want to do it.
      Also, people in these companies are used to being ‘in control’. And there’s no worse thought for people like them than the thought ‘I don’t know what people are doing anymore, I can’t predict, I can’t control this… I need to do something, I need to stop them making things I can’t predict, I need to limit their freedom (or however you’d call this)’.
      And most of them don’t even stop and think ‘Hmmm, if so many people are doing this, there should be a way for me to adapt to this new trend and benefit (make profit) from it. Yes, that would be a win-win – people get what they want, I provide it for them, and I receive the benefits!’.

      There is a great saying about Moses and the 40-year long walk through the desert. Now, I’m not religious at all, but I do like this story:
      If you check on a map and where Egypt and the area of the Promised Land, it takes much less than 40 years to walk that path. But in order to start something new in the Promised Land, where people would not be enslaved anymore, Moses needed to wait until everyone from the generation with the enslaved minds parished, and there was no one with this mindset left alive. They created the new land with the young, free, never been enslaved children.
      You need a big shift in thinking and mindset to make such a big step into doing things in a new way. If you think about the story, you can’t just create a free land with people who only know slavery. They’ll find a way to enslave themselves again – because that’s all they know, there’s no other way of living in their minds.

      Same with business, and pretty much anything in society. You can’t just take someone from an old way of doing things into a new pattern. Their mindset needs resetting.

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      • Hm, I just wanted to point that creativity is time consuming and it needs investment and one needs to have the freedom of her time and money to invest in them or she wouldn’t be able to act on her ideas. I am speaking about my personal experiense mostly, it’s not universal but it was a major issue for me for a long time, not being able to have control of my own time and though I had the ideas, wasn’t able to act upon them. Actually wasn’t talking that much about selling one’s art but something that occued to me in general.
        (I used art as a word, because to me its most accurate way to describe creativity – writing code, creating paperdolls, painting, writing books, everything that comes from the inside as a way to express oneself, maybe it’s not the right word).

        To the rest, I simply agree with you. Change is needed and the way companies are getting bigger and bigger, buying different branches it makes it less and less diverse.

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