View From the East: Pirate Theses



Greg Sandow

1. Piracy is a bad word…

It brings me images of ships that fly the skull and crossbones. They’ll capture us, steal our stuff, make us walk the plank. They’re a threat, not just to life and limb, but to legitimate commerce.

(Although, if you want to get historical, some of that commerce, in the days of real piracy at sea, wasn’t so legitimate. Many ships that were attacked were engaged in some derivative of the slave trade. Piracy didn’t threaten people innocently transporting grain from France to Venice. Instead it hurt huge commercial operators, bringing immensely profitable goods back to Europe from the New World. Thus it could have undermined colonial rule of exploited territories—which maybe means it isn’t all that far removed from piracy of music nowadays, which maybe threatens huge commercial record companies more than it threatens artists.)

2. But downloading songs might not be so bad…

Who, exactly, does it hurt? If pirates board your ship, you lose your property, if not your life. If someone downloads your song from Morpheus or one of the other services that emerged in the wake of Napster, you still have the song.

And here let’s stop a moment for a technical note. Morpheus, AudioGalaxy, LimeWire and other services aren’t “sites,” in the sense that Napster was. And that’s one reason why they haven’t been attacked by lawsuits. Napster maintained a central server, which listed everything that people who’d logged on were offering to share. That meant Napster was violating copyright. These newer services simply connect you to other people whose offerings reach you without the service knowing anything about it.

Thus the services can’t so easily be accused of violating anybody’s copyright—even though they work for everybody using them exactly as Napster did. You log on, search for what you’re looking for—songs by Prince, let’s say—and a list of things you can immediately download appears in the search window. These days, you can download not just music, but movies, episodes of South Park and other popular TV shows, and even commercial software. Some of the software normally would be copy-protected, but has been stripped of copy protection by hackers who’d proudly bear the name of “pirate.” Their goal—apart from the sheer exhilaration of hacking, and the fun they have repackaging commercial software so that it displays their own pirate logos if you dare to install it—is sharing. Often they’ll urge you to share their stuff with others. So they’re not much like classic pirates; they’re not in it for the money.

3. Maybe nobody is hurt…

Back to my previous, as yet unanswered question—who, exactly, does this new kind of so-called piracy really hurt?

Record companies say it hurts their artists, and some artists—like Metallica and Dr. Dre, who attacked Napster in court—obviously agree. Some don’t. The record companies’ own record isn’t very clean in this regard, as a New York Times piece on February 18 explained. Their own download services, where they charge for their music, don’t pay their artists very much, and in a shocking number of cases use songs without their artists’ permission—even sometimes in the face of specific instructions from artists not to use their music.

The companies themselves, of course, can claim that they’ve been injured, since they too are theoretically deprived of profits, when you and I (should we be so inclined) download their music without paying anyone. But are they really hurt? Are they really losing profits? Would everyone who downloads music free have bought it, if it hadn’t been available online?

That’s the key question, and it’s wrong to quickly answer “yes.” Back in the ’80s, the record companies were upset because people copied LPs and CDs on cassette tapes. Not only were the companies upset, but through their trade association, the Recording Industry Association of America (RIAA), they claimed huge financial damage, running into tens (or maybe it was hundreds; I’ve forgotten) of sales allegedly lost each year.

And how did they calculate that loss? First they estimated how many tape copies were made each year. Or maybe we should say they guessed; nobody had any way of getting even remotely accurate data. And then they simply assumed that each tape copy would otherwise have been a sale, and arrived at their damage figure by multiplying the alleged number of tape copies by an album’s average price in a record store.

This was laughable. Would everyone who made a tape have bought the album? No way! My own assumption—no more grounded in firm data than what the record companies assumed, but at least true to things I actually observed—was that music fans are hungry for music. They bought, back then, as much as they could afford (or, realistically, even a little more). And then beyond that they got albums from their friends on tape. Of course they also made tape copies to play in their cars, something the RIAA didn’t bother to factor in (just as they forgot that many people made their own tape compilations of many songs, creating in effect a new album, which they could never buy in stores).

Now things are trickier, in part because it’s much easier to download a song than it was to copy a tape. You can do it on a whim, without first locating an LP or CD of the music you’re looking for. You can even, if you’re enterprising enough, find and download the artwork and liner notes from an album that you want. I can imagine that sales are more affected now than they used to be. But I still don’t think downloads replace sales to any serious extent, because…

4. There are disadvantages in downloading…

These are obvious. First, to make these allegedly piratical downloads practical (especially if you want to download software or movies), you need a broadband connection. For software or movies, you also need to be patient. From what I’ve heard, you’ll often have to keep your computer on all day and all night, while your booty slowly streams in your direction. Often enough, the downloads turn out to be unreliable. They stop midway through, never to resume. Or the files turn out to be corrupted, or have viruses. Then you have to find another source, and start all over again.

You also need to be computer savvy. What do you do with this material, once you’ve got it? How do you install it, play it, burn it to a CD so you can take it elsewhere? None of this is terribly difficult, but it’s not easy for everybody. And it takes both time and effort. If I want an album now, I’m going to the record store. I’m not going to download all the songs (maybe individually, having first gone to some record-sales site like CDNOW to find out which songs are on the album), then burn them to a CD—and, if I’m really fiendish, download the art, print that out (having first bought blank CD insert forms), and finally insert it in the CD I’ve made.

And then MP3 files don’t sound as good as a CD, though I guess they’re good enough for many people. But at least to my ear, for classical music they’re not nearly good enough. They might be fine for special purposes, like listening on a digital music player, one so tiny it’s easy to carry anywhere. But they’re no substitute for a real CD.

If you’re downloading software, you run into special problems. You don’t get whatever printed material the manufacturers still supply, in this age when manuals are normally distributed as computer files. But the printed stuff—with important installation tips—is often helpful, sometimes indispensable. You don’t get technical support. You might not qualify for upgrades. The software might visit the manufacturer’s website without telling you, thereby maybe announcing itself as pirate goods. If you need software for your work, you’d think twice, or so I’d guess, before depending on a pirate copy. At the very least, you do that at your own risk.

5. Sometimes legal protection for intellectual property can hurt artists…

Here I’m thinking largely of composers. You’d think, if a work of yours is performed, that you’d have some ownership of any recording that might be made. And so you do, if that recording is ever put on sale or otherwise distributed.

The catch, though, is that it might not be available, because the musicians who played the performance—especially orchestral musicians—turn out to have more rights than you do. I’m not saying this to attack musicians, but some of the restrictions they enforce can be laughable, and at the very least do composers a lot of harm. If, for instance, you have an opera that you’ve written played by City Opera—with full orchestra—at one of their annual spring workshops, you can’t get a tape. That’s part of the company’s deal with its musicians. This tape might be invaluable to you, your best shot at promoting your work, and maybe getting a fully staged performance. But you’re not allowed to have one.

Similarly, you’re not likely to get a tape—or at least you can’t legally distribute it—of any piece of yours that’s played by a major orchestra. As a result of this, new music gets around much less than it ought to. Composers could easily put recordings of their stuff on their websites, or at some central location (like, at least in principle, the American Music Center). But often they can’t do that, because they don’t have rights to the recordings. I can’t believe this benefits musicians. Musicians fear that the recordings might be sold, and that they wouldn’t get their share of the proceeds. Certainly this has happened—there are thousands of pirated recordings of live opera performances, including many by Maria Callas, which are treasures (almost unbelievably, they’re sometimes better than her commercial recordings, in more or less the same degree that her commercial recordings are better than commercial recordings by almost any other singer). These recordings have been sold for years; the orchestras involved (and of course the singers, too) never got a cent.

But then would the orchestras have gotten any money if their performances never had been pirated? Of course not, because nobody was going to release this stuff commercially. And in fact the process worked the other way—some of the Callas live recordings eventually were released, commercially, by EMI, precisely because their pirated success proved there was a demand for them. So whoever now gets paid when these CDs are sold is getting money they might never have seen if the records hadn’t first proved their worth as pirates.

Which brings me to my final point…

6. Piracy can be good for all of us.

I know a young jazz musician, who’s now in college. When he was in high school, he avoided Napster out of principle—someday, he said, he’d be making records, and he didn’t want anybody stealing them.

So now let’s say he makes a record, which, typically for jazz, gets released on a tiny label. It doesn’t sell many copies, maybe in part because it’s not widely distributed. But now suppose he learns that tracks from it are often downloaded. Wouldn’t he be happy, despite his principles? Sure, he might be horrified, since he’d think some downloads might represent lost sales. But on the other hand, he’d just have learned that he’s popular. My own response, in his position, would be to find a way to market the recording—to make sure my fans knew it was available, because—exactly reversing what record companies believe—I’d assume that people downloading my music would also be interested in buying it.

And there you have the kernel of my own theory about piracy. I’ll assume—until I see data contradicting me—than anything that’s widely pirated is also widely sold. (Except maybe in unusual situations, where something develops cult popularity before it reaches any wider public. And no, the Callas pirates don’t violate my principles. It’s true that her pirated live recordings weren’t selling even a single copy in commercial, legal releases, but that’s because they weren’t available that way. But Callas’s studio recordings were selling very well, which demonstrates my point: The pirates’ sales accompanied far greater sales for comparable, if not identical, commercial product.)

I also believe that piracy is proportional to commercial success—that anything that’s pirated a lot is also sold a lot, and, conversely, that anything that doesn’t sell so well probably won’t be pirated very much, either. Try, for instance, in the realm of office software, to find a pirate copy of the Lotus Smart Suite, or Corel’s WordPerfect office suite, both hapless competitors of Microsoft. I suppose it’s possible, but the Microsoft Office applications are far more widely pirated. If I were a marketing guy for Lotus, I’d be crushed. “You mean nobody even wants to steal our stuff?”

From this point of view, then, piracy is a form of publicity. If people pirate you, you know that you’re successful, and though maybe you do lose some sales from piracy, you could write those off as free samples, which help to get your name around. Here two thoughts occur to me. One is that there’s a product called StarOffice, which gets far more attention as a Microsoft competitor than Lotus or Word Perfect do, and that’s in part because up to now the company that produced it—Sun Microsystems, not a negligible power in the computer world—has made it available free. (Though another attraction has been that it’s available for not just for Windows, but for Linux, too.) Now Sun is charging for the latest version—but is charging far less than Microsoft, and of course is charging anything at all only because the free versions had been popular.

Earlier in computing history, something somewhat similar happened. The IBM PC became the standard, or so everybody said, in part because IBM let other people clone it. To have other companies hawking their computers as “IBM compatible” was no small advertisement for IBM itself, and IBM only lost its market leadership when it got arrogant and took success for granted, selling computers for much more than everybody else was charging (and offering less power).

So the first question I’d ask any company—or artist—who complains of piracy would be: Are you making money? If the answer were yes (adjusted, which is very important, for cyclical downturns, a situation which afflict the record industry and could be mistaken for losses caused by downloads), I’d then ask, “So what are you worried about?” The burden would be on them to prove that piracy would cut into profits in the future. And if they said they weren’t making money, I’d ask them why. Is piracy the cause, or something else, like inept marketing?

(It’s hard, I might add, to have much sympathy for major record companies, which have a long history of cheating artists out of royalties, or at least of deducting absurd things from artists’ earnings—a small sum per CD shipped for breakage (left over, if you can believe this, from the days of 78 rpm records, which often did break), and another sum for the extra expense of the CD, as opposed an LP or a cassette, a charge that once might have been reasonable when CDs were expensive to produce, but now is nonsense. Record companies, we might recall, charged much more for CDs than for LPs when CDs were new, because CDs were a new format and expensive to make. That’s no longer true, but CD prices never came down. Publicly, record companies would say this was to make sure they had enough money to invest in new artists, and on its face that was nonsense—where had that money come from before? Privately, I heard at least one record company president say the prices were kept high because the companies could get away with it. Maybe they deserve to be pirated.)

I’m sure there are exceptions to what I’m saying. Small companies that make music notation software might be an exception—their market is very small, and maybe if young composers pirate their producers, instead of somehow scraping together a few hundred dollars to buy it, that really would be damaging. And maybe things will change in the future, when digital distribution is the norm for commercial products as well as pirates (though I’d want proof that the change made a difference, especially since software even now can be bought via downloads, which still give you advantages that pirated downloads never have). But for the moment I’m sticking to my theory—that piracy hurts hardly anybody, and serves to publicize the stuff that’s pirated.