Running Through the Jungle: My Introduction to Intellectual Property

Before beginning our investigation of Intellectual Property, some personal experience might shed light on certain perplexing questions that arise whenever the subject is broached. I am a musician, a composer and an author, a typical example of one whom the copyright system was purportedly created to serve. Indeed, I derive a small but significant portion of my annual income from royalties collected for songs I’ve written. This money comes mainly from fees paid by radio stations and is collected and disbursed by SUISA, the Swiss organization devoted to this task (there are similar such collection societies in most countries. In USA two are dominant: ASCAP and BMI). Upon becoming a full-time musician, I encountered copyright more as something you had to do than as a legal concept. Songs needed to be registered, membership in a collection society secured, etc., but I accepted without question that copyright somehow helped me, even if it wasn’t clear how. Until 2005, I viewed copyright in the manner one might view a driver’s license: a commonsense measure accepted by everyone as necessary to sharing the road. But when I submitted what I thought was the completed manuscript of my book, The Trouble With Music, my publisher insisted I was not finished until I had written a chapter on internet file sharing and its effects on music, music-makers and the listening public. Internet file sharing had, in the five years between 1999 and 2005, become such a hot topic that no one interested in music could possibly be unaware of the controversy or not have strong opinions on one side or the other of a sharp divide.

This divide opened with the Napster vs. Metallica case, in which a world-renowned rock band brought a lawsuit against a trio of college students who’d written computer software that enabled the sharing of music stored in computer files. Shawn Fanning graced the cover of Time magazine with a tagline reading: “How Shawn Fanning, 19, upended music…and a whole lot more.” Upon discovering that an unreleased song of theirs was circulating widely via Napster’s peer to peer network, Metallica filed suit for copyright infringement. This was followed by drummer Lars Ulrich appearing in print and broadcast media decrying the theft of Metallica’s music. The battle was on.

I was then living in the San Francisco Bay Area, home of Silicon Valley and Metallica, and the issue was impossible to avoid. Like many, I was both amused and bemused by the position a band with a vaguely anti-authoritarian reputation took toward Napster at the time. I found it strange that these guys who were by then very wealthy rock stars would position themselves as cops cracking down on their fans who were simply exchanging their favorite songs in the manner previously done with cassette tapes and vinyl records. Bootlegs have long been a staple of record collections, the mark of a dedicated fan. Bob Dylan and the Grateful Dead were famous for them. Besides, what could be more natural then sharing music? Everybody does it. It’s what makes the world go round.

Knowing this, however, only made me less interested in devoting a chapter of my book to it. On the one hand, I knew it would take an enormous amount of research into law and history if I were to contribute anything useful to serious debate. On the other hand, I wasn’t sure serious debate was even possible given the moral panic being spread by industry mouthpieces like the Recording Industry Association of America (RIAA). Indeed, I wasn’t at first convinced there was anything novel about this hullaballoo at all. I’d already been involved in other, pre-internet, cases such as Negativland’s battle with U2 and the first confrontations between music publishers and rap artists “sampling.”1 In fact, all my dealings with publishers, record companies, managers and booking agents, indicated this was just another ploy. I knew that ripping off musicians, especially songwriters, was as old as the business in music itself and that the people responsible were not the public but the publishers and record companies who made great fortunes while musicians remained poor.

But I could not ignore the fact that virtually everyone was talking about this. Moral panic or not, the RIAA had intensified its campaign of vilification and harassment, specifically targeting teenage “pirates” for prosecution and enlisting the support of musicians for gestapo-like intrusions into private homes. The criminalization of file sharing was an escalation more sinister than the original civil litigation brought by Metallica against Napster, as obnoxious as that was. Confronting us was nothing less than an attack on civil liberties, and to “defend” my copyright I was being asked to join a lynch mob! In this combative atmosphere I nonetheless sought to keep an open mind and learn something about law, the internet and the practical workings of copyright. What I discovered made me an abolitionist.

I did not start out with abolition in mind, yet logic and evidence convinced me that the copyright system is fundamentally unjust, cannot be reformed, and must be eliminated to make way for a new approach to the real problems confronting musicians, namely, credit and just compensation.

Now credit and just compensation are a subject in themselves to be explored later on, but from the outset a crucial distinction must be made: credit and just compensation are not equivalent to ownership. Contrary to what we have been led to believe, the conflict over copyright and IP in general is not about creativity, freedom of expression, innovation or progress; it is about ownership and collecting rent for something that ultimately belongs to everyone. It is about the “I” who privately appropriates a thought and is opposed to the “we” that shares that thought, and indeed makes thought possible. At the most basic level this clashes violently with the practices necessary to music making, a point to which we’ll return.

My research began by consulting people who had experience negotiating contracts to unravel the mysteries surrounding applicable law and prevailing industry practices. I wanted to establish the extent to which contracts and court decisions conform or do not conform with the ostensible purposes of copyright, namely the protection and reward of the author or composer. Comparing, for example, the relative power of publishers, record companies and artists, one finds a structural inequality belying the claim that copyright “protects” the composer or musician. The methods for calculating royalties, recoupment costs, and the burden of risk bear scant resemblance to the claim that copyright rewards creativity. Furthermore, “industry practices” were all established in the US in the early years of the 20th century and have remained fundamentally unchanged ever since, in spite of social and technological changes. The copyright act of 1909, supplemented by a Supreme Court decision in 1917, effectively granted state sanction to the publishers and record companies who control the music industry. Though this underwent an important modification in 1976, this modification only increased inequalities built into the original system. To better understand how this works I will summarize the information given to me by David Rubinson, a world-renowned record producer and manager. Rubinson’s analysis is furthermore confirmed by a number of other expert sources. In fact, it is common knowledge among “industry insiders.”

The Record Deal – standard industry practice

1. All recording and publishing/songwriter contracts are Personal Services agreements.
2. All contracts are exclusive, meaning:
a) The company owns the exclusive rights to the services rendered by the artist.
b) While the company cannot force the artist to perform, it can prevent and enjoin the artist from performing services for others. Thus, control over the rights to the artist’s works and/or performance rests with the entity (record company or publisher).
3. All contracts use a formula derived in the era of printed sheet music (music “publishing”) and the first 78rpm records (1900s) when recorded performance was quantified in terms of a printed sheet of music, or recorded “sides” as in one side of a shellac (later vinyl) platter or record. Records were usually packaged and sold in sets (“albums”) with a cardboard outer cover and paper sleeves for each of the platters. The definition of services was given as a minimum number of sides and later “albums” that the performer was contracted to provide.
4. All contracts pay the artist a royalty based on the retail price of the sides or albums MINUS the packaging costs, breakage (78rpm sides were fragile), and returns of unsold merchandise, PLUS all recording costs and many marketing expenses. These costs are recouped by the record company prior to the artist receiving any royalty payments on sales.
5. In record company accounting, for purposes of recoupment of all of these costs, all contracts computed an “artist royalty” rate (usually between 3 and 10% of retail price). It is from that “artist royalty” alone that the artist recouped the costs of recording and packaging. This is a crucial point because 100% of the money received from record sales goes to the record company whereas only 3%-10%, is credited to the artist for recoupment of costs.

Hypothetically, John Artist might be entitled to a 10% royalty rate, which might amount to approximately $1 per record sold at $10 retail. Given recording costs of $100,000 – and 100,000 records sold – since John only recouped the costs at his $1 per record “artist royalty” rate (not the $10 per record the record company was earning), the record company would recoup all of its costs at 10,000 records sold (10,000 sales X $10 per record) but John would not recoup until 100,000 records were sold (100,000 sales X $1 per record). This meant that the record company received income on 90,000 records sold while paying John nothing. In general, a vast number of record contracts were “unearned,” meaning that costs were un-recouped at the artists’ royalty rate.

General comment: This was and remains a plantation system. Recording artists were and are equivalent to sharecroppers or slaves. Ownership of capital and control of the channels of marketing and distribution enable the record and publishing companies to compel the artist to hand over the lion’s share of the goods/services he/she produces – in this case composition and performance – in order to be able to produce the works, continue to produce them, and to have any access to distribution. This is not fundamentally different from cotton or tobacco, gold or copper or any other industrialized crop except that in order to sell the musical composition and/or performance, notoriety has to be created for the artist – as a brand or trademark – thereby increasing demand in the marketplace. The result is that with the exception of a small number, musicians have usually derived the greatest portion of their income from live performance fees (not recordings), augmented by songwriter royalties from the licensed use of their copyrighted works (fees paid by radio, filmmakers or advertisers). Furthermore, other participants in the system such as managers, agents, accountants and attorneys derive their percentages and fees from the GROSS earnings of the artist, before expenses. The plantation analogy held for virtually every aspect of the music business until the recent breakdown of the monopoly that came with the growth of the internet, and the advent of cheap high quality home recording.

What’s important to add to this very general summation is that this plantation system was and is particularly exploitative of black musicians and composers. Notorious examples are the treatment of Bo Diddley and Bob Marley, and such examples abound.2 This is not to say that most white musicians were ever much better off. But the American music industry was built on slavery, Jim Crow, and the perpetuation of racism. (The term Jim Crow comes from the title of a song, “Jump Jim Crow,” written and made popular by blackface performer, TD Rice. For over a century, minstrel shows, coon songs and degrading images of black people were indispensable elements of American popular entertainment generally, but especially music.) This was nonetheless a recognition of the profound social effect black music in its own right produced.

No one could deny the deep reservoir of emotion, virtuosity, stylistic variation and originality of the music made by slaves and their descendants. Nor could any deny the moral authority of the people making it. They didn’t ask to come to America. They didn’t ask to be slaves. And yet they lifted their voices and sang with an eloquence and conviction that was the envy of their masters. By the time ragtime hit, black music was by any measure the most influential and uniquely “American” of all cultural expressions emanating from the Western Hemisphere.

How the music business perpetuated segregation and the division of American society even as it sought to profit from black music is a story too lengthy to tell here. As regards copyright, however, the fact that countless numbers of compositions from countless numbers of composers were never “protected” or “incentivized” by copyright is impossible to overlook. This experience alone would cast doubt on any claims to fairness or balance in the practical application of copyright law. A far more relevant question to be asked is why did copyright need to be justified in terms of serving the public good and protecting the humble composer, and how did it manage to convince so many that it was effective in achieving these noble aims?

Music, technology, legislation and revenue-generation

There are complex philosophical, legal and political explanations that deserve close examination. For this introduction, however, I’ll confine myself to one that bears most heavily on present disputes regarding music. That is, the relation of copyright to the phonograph and the radio, or more generally, technological evolution. What is happening now with the internet, with computers and various gadgets such as the iPod or other digital devices for storing and playing music, is based on a business model established more than 100 years ago. Indeed, what we see now, almost 15 years after the Napster case, is that much of what is called “revolutionary,” “innovative,” “visionary,” etc. is nothing of the sort. Quite the contrary, what Apple and other gadget makers have done is to replicate – to copy – the successes of Emile Berliner and the Victor Talking Machine Company, with the phonograph, Edwin Armstrong and the Westinghouse Company, with the radio. Steve Jobs’ entire strategy was “borrowed” from his predecessors, especially the deals with publishers and record companies to allow Apple to use millions of songs to sell iTunes, the iPod and all the gadgets that enable playing them. Here lies the great hypocrisy at the root of today’s clamor to “protect” musicians. The real motive is twofold: to sell gadgets just as phonographs and radio sets were sold, and to dominate the internet in the same manner the airwaves were dominated before. Music is thus given away as a means of attracting customers. It is by and large paid for as an advertising cost and has nothing to do with creativity in the sense normally applied to art. Because music is an expense and one paid for by the manufacturer of a device or service, should it fail to attract paying customers it will be consigned to oblivion. Experiment is, by definition, forbidden. Only conformity is rewarded. Against this backdrop we get a glimpse of not only the ulterior motive, but the reasons the public must be led to believe that “we’re all in this together,” that “what’s good for business is good for America,” and so on. The guiding principle is mobilization of the masses to, on the one hand, support certain legislation and, on the other, consume the products sold to them, which in turn requires creating the impression that all these giant corporations do is facilitate. They don’t rob and plunder, they help.

Some still argue that these circumstances make it even more important to defend copyright to ensure that musicians get some small share of all the revenues being generated. But this overlooks what is happening in fact and in principle. In fact, owning a copyright has no value in and of itself. If no one will pay money for your song, what difference does owning its copyright make? In fact, musicians are not being compensated proportionately to the billions in profits generated, nor could they be, since the vast majority of revenue-generating copyrights are held by a few giant corporations. Yes, I still may get a small portion of the taxpayers’ money that subsidizes the broadcast of music in Switzerland (as long as the programmers choose to play my songs, that is), just as I might get a small portion of advertisers’ money spent on privately owned radio in America. But the inequality is so vast as to render the comparisons ludicrous. And this, in principle, is the real purpose copyright was designed to serve.

A recent study carried out by researchers at Northwestern University School of Law confirms this, challenging common assumptions concerning the protections and incentives musicians supposedly derive from copyright.3 The survey’s author, Peter DiCola, states in his abstract: “For most musicians, copyright does not provide much of a direct financial reward for what they are producing currently. The survey findings are instead consistent with a winner-take-all or superstar model in which copyright motivates musicians through the promise of large rewards in the future in the rare event of wide popularity. This conclusion is not unfamiliar, but this article is the first to support it with empirical evidence on musicians’ revenue.”

Another survey result was perhaps unexpected but raises more troubling questions. Simply seeking data, the researchers confronted this anomaly:

Amazingly, given the level of attention that policy makers, scholars, and journalists give to copyright policy, the incentive theory has received little empirical study. Each side offers anecdotes but no data…. Copyright advocates have trouble convincing the public of the need to strengthen copyright or even the whole copyright system’s legitimacy. Meanwhile, copyright critics leave many commentators with sensible doubts about the wisdom of weakening or eliminating copyright. For these reasons, James Boyle has dubbed copyright policy, along with the other fields of intellectual property law, an “evidence-free zone.”4

This observation, however, takes caution to an extreme. Considering that the copyright act dates from 1909, one has to wonder why it has taken so long to gather such data!

Attempts at reform

Perhaps answers to that question can be found by examining another dimension of the problem. At least since the mid-1990s, legal scholars have debated various measures to reform copyright in light of rapidly evolving digital technologies. Computers, the internet, the worldwide web, and the proliferation of programs designed to use these technologies were already threatening to make copyright obsolete even before the Napster case. Lawrence Lessig at Stanford and James Boyle at Duke University penned provocative essays that commanded attention far beyond the halls of academe. Lessig’s “Architecture of Innovation” and Boyle’s “The Second Enclosure Movement and the Construction of the Public Domain,” pointed out the inadequacy of current copyright law and, more importantly, the inflexible attitude of the industries – namely publishing, music and film – that depended on copyright law for their profitability. Lessig’s proposal was the Creative Commons license, which in no way undermines copyright but does seek to define and make legally binding the wishes of authors as to attribution and use of their works. Boyle’s main effort has been directed toward a return to what he sees as the original spirit of copyright law. This meant a strictly limited monopoly, for a short time, after which copyrighted work would enter the Public Domain. Boyle took his argument further by attacking enclosure, making explicit the parallels with the enclosure of land that eliminated the commons in most of Europe by the mid-19th century, leading to pauperization of the peasantry, and arguing that this was being repeated in the age of the internet with similarly dire effects.

Needless to say, these efforts have failed to produce the desired reforms. Their principal virtue has been to identify the logical and legal extent of the problem, revealing how the justifications made for copyright are flimsy at best, fraudulent at worst. Boyle’s and Lessig’s work has furthermore brought attention to the commons as both conceptual and physical space. This has undoubtedly given encouragement to organizations such as the Electronic Frontiers Foundation (EFF), Demand Progress, and a host of other groups gathered loosely in occupations and institutions whose principal activity is online. Numerous campaigns have led to small but important victories which have nonetheless failed to stop the juggernaut of IP. Years of valiant effort have, in fact, led many activists to the conclusion that in order to overcome such a vast apparatus as IP, we need to get to the root of the problem. And this exposes the inherent shortcomings of reform.

Reform is, after all, meant to serve an existing system, not to substantially change it. Thus, almost 15 years after Napster, it has become abundantly clear that reform of this system is only desirable to those benefiting from it, and those benefiting from it are not the great majority of authors, composers, inventors or the public at large. The real beneficiaries are the same small group of publishers, manufacturers and financiers who established copyright (and IP generally) in the first place. Some people said so from the very beginning. John Perry Barlow, lyricist with the Grateful Dead and co-founder of EFF, published his famous “Declaration of the Independence of Cyberspace” in 1996. Barlow argued that government and industry were not only oppressive but effectively obsolete, “Your legal concepts of property, expression, identity, movement, and context do not apply to us.” Instead, such concepts only serve to reveal that “increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron.” To such tyranny one could only respond in the manner revolutionaries so often have: “These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty.… We will spread ourselves across the Planet so that no one can arrest our thoughts. We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.”5

Utopian as such rhetoric undoubtedly is, it nonetheless offers a stinging rebuke to those who seek to limit discussion to the comfortable boundaries set by none other than the copyright industry itself. Questions which have hitherto been shrouded in mystery or silenced by a Denkverbot – the prohibition of thought – can now be seriously posed and widely discussed.

There ain’t no ‘I’ if there ain’t no ‘We’

Music cannot exist without a “we” to make it and experience it. Its fundamental premise is sharing and not possession. (Paradoxically, this is precisely the reason it is coveted by the privatizers. Were it not for music’s social force, it would have no use as a commodity. But turned into a commodity it loses its social force – as is evident in the degradation of music and musician alike in today’s neoliberal environment. What place has love in a whorehouse?) Except as a pure concept, which cannot in any case be copyrighted, actual music exists as sound transmitted by the air. Instructions for its performance may be stored in various mediums from paper to computer file, but it only becomes music when it disturbs the air in the proximity of human eardrums. (Of course, one can read music and imagine the sound it will make, but this is simply the memory replaying previously heard sounds in the mind of a trained reader/listener.) Even more fundamentally, music is an activity. It is made by people for diverse purposes, including the simple pleasure of making it, but every purpose is ultimately social in nature.

The presumption that the individual composer is the source of music, or at least our best music, has no foundation; it is a fable constructed to make copyrights generate revenue. It is no surprise that “the composer” was born with the first copyrights and patents and develops in accordance with the rise of the bourgeoisie in Europe. The composer as a revered and privileged figure (a “star”) did not exist until after the French Revolution, in fact not until well into the 19th century. Previously, musicians were attached to aristocrats or the church as employees or servants. There was little reverence and less privilege even for giants such as Bach (famous in his day, not for composition, but for his extraordinary ability to improvise!). Indeed, if the origin of the composer (or “author” or “artist”) as a legal category and not merely a vocation is critically and comprehensively appraised, one can see that it has been a mixed blessing. For all the wonderful music that has been produced there has been a high price not only in the poverty of most composers but in the destitution of traditional or folk forms of music. The composer’s rise to dominance is mirrored by the decline of popular participation in the music-making process. This is evident if one looks at how prevalent pianos, guitars, banjos and other instruments were in the homes of people – even poor people – less than one hundred years ago. Music was until very recently something that most people did – at home, at church, at union meetings and social gatherings of all kinds. That this is no longer the case is considered progress by defenders of copyright and purveyors of “music players.” (The only parties interested in people playing music are musical instrument manufacturers – a subject beyond the scope of this introduction, but analysis of which supports my argument.)6

The point here can be summarized thus: the premises upon which legal authorship are based sharply contrast with the processes by which music physically and intellectually enters and exits the world. Indeed, I would argue that there is no composer in the abstract form we’re accustomed to idolize (and which is enshrined in law). Of course, there are real composers who devote enormous energy, time and skill to produce wonderful pieces of music. But that does not mean they aren’t deeply indebted and indissolubly bound to a wide range of social actors including teachers, other musicians, traditional sources as well as their audiences. Furthermore, composition of a piece of music does not make ownership of it a natural and inevitable consequence. This may be obvious given the vast number of compositions in the Public Domain. But even if that were not the case, there are practical obstacles to attaching the concept of “ownership” to music. Certainly I can say, “This is my song, I wrote it.” But a sudden transformation takes place when I ask an audience to listen to my song. The audience, I hope, will give me its attention in hopes of gaining something in exchange. I then give the music to the audience and, in so doing, dispossess myself of exclusive knowledge or experience of this music. This is called sharing. And parents and teachers routinely socialize children precisely through sharing. It takes great feats of intellectual gymnastics to establish ownership over something everyone possesses. Once we’ve heard it, is it not ours? How are we to divest ourselves of the experience and the knowledge of this music? It is ours whether we like it or not. Besides, as John Perry Barlow put it in another of his famous pieces, Napster and the Death of Music, “Whatever the current legalities, I personally find defining ‘my’ songs to be a form of property to be as philosophically audacious and as impractical as would be a claim that I own ‘my’ daughters, another blessing that just happened to pass into the world through me.”7

Credit and just compensation

What happens if IP is abolished? What measures can be taken to insure that authors, composers and inventors are given the credit and compensation due them for their labor, their skill and their ingenuity? While this is a subject large enough for book-length exposition, I shall here provide a brief outline of how a different system could work.

Four principles guide my thinking: 1. The public must support the arts in general and music in particular. 2. Support must include money for musicians and composers. 3. Credit must be accurately assigned, but that must include every contributor to a musical composition or performance, not only the titular “composer.” 4. Music is free

The first two of these principles are already in use, albeit in a very limited sphere, namely, classical music (and in Europe, jazz). Public funding and the donations of rich patrons are what keep symphony halls, opera houses, orchestras and facilities for recording this music from disappearing. Certain sectors of society deem our “cultural legacy” worthy of defense from the vicissitudes of the market. This is a tacit admission that, without such subsidization, it is highly unlikely that classical music could survive, at least on the scale or with the status it now enjoys. Yet, if all music were subsidized in a similar manner it would immediately solve the problem of compensation because musicians would be compensated in a manner similar to those of symphony orchestras today. Who qualifies for compensation will undoubtedly be a bone of contention, but here again, there are many institutions that already make such decisions, from music schools to juries awarding grants and so on. Undertaking this task will, moreover, be a public responsibility shared by all and not the personal risk of isolated musicians. Impoverished as they may be under today’s neoliberal regimes, public administration of education, recreation, and celebration still provides alternatives to the music industry. Public libraries are exemplary in their emphasis on lending and borrowing – as opposed to stockpiling or hoarding – a public good. What is clear is that the market is not the best, let alone the only, way compensation can be made for the labor, skill and ingenuity of musicians.

As for the question of credit, everyone contributing to a composition or performance should be acknowledged. The tambourine player who comes up with a distinct pattern in the opening bars of a popular recording deserves to be credited for her/his creativity as well as the execution of his/her part in the ensemble’s performance. The guitarist who comes up with a distinct lick that identifies a new version of an old folk song should be acknowledged as a contributor to a composition not only as a guitarist. An endless list could easily be compiled revealing the distortions created by copyright’s insistence on there being an individual author to whom ownership can be assigned. None of this will matter much, however, when people are no longer fighting for rank in the pecking order. No doubt, some will contribute more than others to specific forms and innovations that go on to be the most influential. This should be duly noted by all concerned, and I, for one, have faith in the basic honesty of people who love music and wish to honor the outstanding contributions of certain individuals. But what matters most is that credit will be awarded freely and fairly based not on criteria of ownership but on actual effort and musical effect.

Finally, music is free. Free because it’s ours. Once we recognize that the people pay for everything anyway, it is no greater burden to be, on the one hand, supporting music-makers and, on the other, freely exchanging the resulting compositions and performances. It is self-evident that as taxpayers or consumers, the “masses” or the general public pay for everything. It is only the publishers, record companies and other “middle men” who will lose in the new arrangement, since it is the share they appropriate from what the public pays that constitutes their profit. This is an enormous waste of resources and such waste will be eliminated. Imagine how much more could be devoted to supporting the arts and the artist when all the exorbitant fees and rents presently filling the coffers of non-productive parasites are instead directed to their rightful place.


1. Negativland is a band that, in 1991, published a musical parody of a song by another band, U2. According to US copyright law, parody falls under the category of “fair use,” one of several legal exceptions allowing copyrighted work to be used without the permission or compensation of the author. U2 and their record company, Island Records, got a temporary restraining order from a federal judge that led to, among other things, confiscation and destruction of the offending records (vinyl) and the payment of penalties larger than what Negativland had earned in its entire career to that date. I was drawn into this case because I was signed to Island Records by Chris Blackwell, then Island’s owner, but was also a friend of Negativland. The band approached me rather desperately asking if I would appeal directly to Blackwell to get Island to lay off. I spoke to Blackwell only to be told it was out of his hands. For the full story visit:

2. Bo Diddley’s story is both notorious and typical. Bo Diddley earned a pittance from worldwide sales worth millions. The same thing happened to Little Richard, Chuck Berry and many of the black “founding fathers” of rock and roll. Diddley, however, loudly denounced such treatment, which many of his peers, fearing reprisals, did not do. One interview, typical of many in which Diddley made his case, is available here:
The Bob Marley case is slightly different but equally outrageous. In 2010 a New York court reaffirmed ownership of the copyright by Universal Music Group of many Bob Marley albums, declaring them “works for hire,” thereby making UMG the effective “author” of the works. “Works for hire” is a stipulation in US copyright law specifically designed to ensure that a copyright owner need not be the actual composer or performer of music. See: Jamaica Intellectual Property Office 09/14/2010

3. Peter DiCola, “Money from Music: Survey Evidence on Musicians’ Revenue and Lessons about Copyright Incentives,” Northwestern University School of Law, January 9, 2013,

4. Ibid. James Boyle is a professor of Law at Duke University. He is, along with Lawrence Lessig, a founder of Creative Commons and has written many essays and books on IP.

5. John Perry Barlow, A Declaration of the Independence of Cyberspace, 2/8/1996,

6. The fact that musical instruments of all kinds continue to be widely sold clearly demonstrates that people love to make music. Yet the context has changed several times over the last hundred years, especially since the 1960s when a generation made music its voice. Since the 1960s, and in direct response to the radical threat posed to the status quo, the professionalization of education and performance has tended mainly to intensify the separation between those who make and those who consume music. This is likely to change again as people rally together to fight the depredations of capitalism.

7. John Perry Barlow, “ and the Death of the Music Industry,” The Technocrat, 12/5/2000.


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