Donna is at iLaw this week, pointing out interesting tids and tads from the Berkman Center showcase of cyberlaw. (Copyfight: ILAW Field Notes).
Among them is an all-too-familiar exchange between Yochai Benkler and Charlie Nesson over whether P2P will spell the end of copyright as we know it, the end of record companies as we know them, or nothing new at all:
Benkler: "Music wasn't born with the phonograph, nor will it die with peer-to-peer. The record companies might, though.
Both of these presentations [Terry Fisher's and Charlie Nesson's] are conservative with regard to the current record industries. The pushback is definitely about the question of why shouldn't the record companies just die? ...[Artists] have existed without record companies. Why should we be attracted to sustaining them with these conservative proposals?"
Nesson's response: "So you would favor eliminating the copyright clause altogether?
As much as an advocate for copyright balance as I am, I think both these stances are missing an important point. While it is true that musicians existed and survived before record companies existed, it isn't true that a music industry existed prior to the invention of music distributors.
Prior to the entry of music distributors into the market, most musicians could only make money via live performances. That severely limited their economic potential, especially in terms of international commerce and trade. Sheet music companies and (later) record companies dramatically changed the dynamics and economic potential of music. They allowed a small cottage service economy of individual performers to become part of a billion-dollar mega-industry that now makes most of its money off of exporting products (e.g. CDs).
This is not an insignificant shift. Losing the record industry means potentially losing a tremendously powerful and important part of our GNP and one of the few areas where our international trade balance actually favors us.
What we need is not for the record industry to "die" but rather to have the industry evolve. We still need methods of marketing and distributing music. P2P does a nice job of distribution but it has yet to demonstrate that it can market an unknown band on its own to the same scale that the RIAA can. [DJ Dangermouse is a notable exception, although one could argue that the coverage in the NYTimes, the New Yorker, Entertainment Weekly, and LA Times didn't hurt].
The bottom line is that as much as we hate the evil aspects of the recording industry, we mustn't discount the actual good it produces, both socially and economically. If P2P is really going to succeed in moving music forward to the next era, it's going to have to find substitutes for these benefits that the RIAA currently provides, either by substituting new structures and markets for them or by working with the record labels to provide them. If we are unable to bridge this gap, I fear losing the record labels will, in fact, hurt artists and music lovers.