Maia Davis Mixes Music Biz Morality and Economics

Stuart Freen is a JD Candidate at Osgoode Hall Law School

The Montreal Gazette recently published an op-ed piece by musician Maia Davis discussing the music industry and lost profits due to file sharing. In it, Davis laments that musicians cannot currently make a decent living selling music due to an atmosphere of entitlement amongst fans who feel that it is socially acceptable to download music illegally. She argues that Canadians should not be so hostile towards the “digital locks” portions of Bill C-32, since they are necessary in order to foster viable business models for artists. Davis can now count herself among a small group of Canadian indie artists who have publicly spoken out against downloading and in favour of Technological Protection Measures (TPMs). While she is probably right about TPMs being necessary for protecting the livelihood of musicians, she may be ignoring the bigger picture.

As far back the Napster/Metallica debacle in 2000, musicians have been complaining that online piracy cuts into music sales and deprives them of an honest living. And, while it is hard to prove causation with such a complicated issue, there is an obvious correlation between the rise of mp3s and the decline in sales the music industry has endured in the 00’s. Any university student can tell you how painfully easy it is to download music in an authorized manner, and download they do – a lot.

The music industry has made some efforts at controlling the copying of music, but they have largely been unsuccessful. Attempts at introducing anti-copying digital rights management to CDs resulted in the disastrous Sony rootkit scandal in 2005, and Apple’s attempt at using TPM-laden files in its iTunes store prompted such a huge public backlash that it forced the company to switch to the open source mp3 format. TPM has become a dirty word in the music business because of the negative connotations it carries with consumers, particularly after the rootkit episode.

The music industry could learn a lot from Hollywood. Through their proprietary Blu-ray and DVD formats, the movie business has devised a fairly effective way of protecting their intellectual property by leveraging the Digital Millennium Copyright Act (DMCA). Basically, Blu-ray discs are loaded with digital locks such that that only players approved by the Blu-ray consortium (i.e. major players in the movie industry) can play them. (The DVD CCA similarly regulates DVD TPMs). The DMCA, which contains TPM provisions similar to Bill C-32, gives the movie industry the clout go after anyone who circumvents an “effectively protective” TPM or helps others do so. The DMCA makes it illegal to a) copy protected discs, b) manufacture players designed to play copied discs,  c) crack the TPM itself, or d) “traffic” devices or services facilitating circumvention. This is how the movie biz shut down Real DVD, and how they have (for the most part) prevented unauthorized Blu-ray players from entering the market.

When Maia Davis suggests that Canadians support the digital locks sections of Bill C-32, she is arguing that musicians should be able to sell their music on their own terms. She is arguing that record companies should be allowed to encrypt music media with whatever proprietary protection they desire, and aggressively litigate against anyone who circumvents it. In fact, this is a pretty smart route for the music business to take. If the record companies could work together and start selling music in a proprietary format (as opposed to mp3s), they would be able to control which companies were authorized to sell music players. More importantly, they would be able to sue the middle men who make circumvention possible. No longer would they have to sue individual consumers for burning music; they could sue the company that made the burner in the first place (and the store that sold the burner, etc.).

I think Davis is correct when she writes that digital locks are needed to fully protect intellectual property in the digital world. There is clearly a big loophole of enforceability when it comes to digital media files, and the digital locks provisions in Bill C-32 would go a long way towards protecting that intellectual property. However, Davis’ point is really a moralistic one: She thinks that musicians deserve to get paid because they work hard and people enjoy their “products”. Her article is premised on the notion that workers should be entitled to enjoy the fruits of their labour.

The broader question, however, is whether this is an area where comprehensive, iron-clad IP protection is even necessary (or desirable) at all. Perhaps this is an area where no useful objective is fulfilled by beefing up copyright law. Of the many possible justifications for copyright law, the one preferred by most academics is that of an incentive-based model. Copyright exists in order to incentivize the creation of new creative works. Artists are provided with a limited monopoly over the exploitation of their work return for them sharing the work with the rest of society. It is essentially a bargain between the creator and the public. If copyright laws are not doing anything to increase either the quality or quantity of creative works within a state, then they are useless. Copyright is not about providing fair compensation for the hard work of songwriting; rather, it is about dangling a big enough carrot in front of musicians that they will head into their studios and create new works.

Whether or not the digital lock provisions in Bill C-32 will work to further incentivize the creation of new music is a question of economics, not morality. Although stronger copyright protection may be good for the music industry as it currently exists, it will be slightly worse for the rest of the public, and may in fact result in no increase in the output of creative works. Record companies will probably sell more records, true, but consumers will have to pay more for music and will see some uses (including legitimate backup copying and fair dealing) taken away. On the other hand, it’s unclear that Bill C-32 will do anything to promote the underlying goal of the Copyright Act, which is to foster the creation of new works of art.

While I would not count myself as someone firmly in the anti-TPM camp, I do not think it is fair to classify all the opponents of Bill C-32 as artist-hating record thieves. Opponents of Bill C-32 don’t hate artists, they just see that particular section of the Act as unbalanced and unnecessary. So: don’t take it personally, Maia.

Side note: I caught Davis’ band Ladies of the Canyon at a CMW showcase last year and they were pretty good! Although they’re probably tired of the comparison, they struck me as a Canadian version of the Dixie Chicks (in a good way).

  1. The issue of TPMs is more layered and complex than what appears in this space. They are not just about preveting the unauthorized copying (i.e. theft) of digital content, nor can they be in a simplified us (creators) vs. them (consumers) construct.

    On the contrary, TPMs are essential enablers of innovative digital distribution models. For example, consumers can gain unlimited access to millions of songs through online music subscription services for just $10 a month. The trade-off: the don’t own the files and must keep paying to access them. This is possible only with TPMs. Software companies offer consumer 30-day free trials, after which they must choose to either buy the software or it stops functioning. Consumers benefit as they get to test drive the software. Once again, this is possible only with TPMs.

  2. Maia Davies – not Davis – said it perfectly. Thanks for having the courage to speak your mind, knowing the backlash you would face.

  3. Mr Freen,

    By way of disclosure I work at Warner Music Canada, Ladies Of TheCanyon’s label. But the opinions and views expressed below are entirely my own.

    You raise an interesting point in if Copyright is indeed an agreement between creator and the public at large it would seem to me that there needs to be some recourse for the creator when that agreement is broken their agreed upon temporary monopoly.

    I’ve read a few times since Maia’s orginal piece that copyright does and should not in anyway guarantee an artist’s compensation or livelihood and that may welll be true. In the current climate, however, the torrent sites and various pirates are making money from the works of artists and their investments of their pulbishers.

    Take a look a any Torrents site and ask yourself how does a party making money through the unauthourized distribution of other peoples’ Copyrighted material encourage the creation of new works.

    I would argue that C-32 does indeed promote the underlying goal to not only foster the creation of new works but to encourage investment in the cultural and IP industries which is good for artists and for the future of Canada’s economic wellbeing.

  4. I don’t believe Maia ever said that anyone who opposes the Bill hates artists or are theives. She stated, correctly, that artists should have the right to get paid for their work. If creators choose TPMs to make this possible, that is their right and it should be enshrined in law. Interesting that kudos are given in this piece to the film industry for its use of locks, but that the music industry is villified. Maia’s demonstrated amazing courage in taking a stand – I wish more artists would, but unfortunately artists are attacked for standing up for themselves. She shouldn’t take it personally? If someone was taking my work without my permission and not paying for it, I would certainly take it personally! This is her livelihood at stake here. Bill C-32 isn’t perfect, but it’s a great start to taking away the free pass BitTorrent sites have had in Canada so far.

  5. Digital locks or not, people who create anything should have the choice of whether or not there is a digital lock on it. But that is not the only issue the Bill covers and this article is trying to steer people away from all of the good copyright reform does for the growth of culture in our country.

  6. In her piece, Maia never says that opponents of C-32 are “artist haters” as you state. In fact, what she says is:

    “Some people have raised objections. If those objections are based on a desire for better consumer access to creative works, count me in. But that isn’t really what we are talking about here.”

    Maia wants people to be access her work, and the work of other Canadian artists. She also wants her work to be protected from those who never intend to pay for her hard work, and creativity. Our artists deserve to be paid for their work, as they are some of the greatest artists on the planet. C-32 is a step in the right direction.

  7. While I agree with some of your points here, I think it’s misleading to suggest that stronger copyright will mean the consumer pays more for music and that record companies want to restrict legitimate consumer behaviour like back-up copies, etc.

    The TPM debate is a thorny one, and while you are somewhat right that the film industry has benefited (e.g. Blu-Rays), there’s obiously tons of illegal trading of their works, even in the HD format.

    Music companies have a huge challenge in that returning to a TPM format will be resisted by consumers. However many new digital ‘access-model’ (or “cloud”) based services (e.g. Spotify) technically rely on TPMs to manage user accounts and control content, yet consumers seem to love it. The availability of these services in Canada can’t come soon enough to offer consumers choice, but we need to take a stand against piracy and develop stronger copyright laws to help attract and support these services. The Bill is far from perfect, but it’s step forward.

    Bottom line – the expectation that content can and should be ‘free’ has to change, and kudos to Maia and other artists for actually taking a stand.

  8. I believe that the reforms that Bill C-32 proposes will most certainly foster the creation of new works of art in this country.

    Recorded music is not only an art form but is also represents an investment, a seed of hope for talented musicians who hope to continue applying and expanding their talents onto a greater reach. It also represents a testament to those who have helped further their careers.

    Without proper regulation and enforcement of the copyright laws in Canada, it is hard to imagine a future for those who have chosen to try making an honest living through their efforts, and creativity, while contributing to our heritage and culture.

    Victor Mijares

  9. Well said, Maia!! Bill C-32 is a great start. It will lay out the ground work to help change the mindset of those who don’t realize (or don’t care!) that behind every song they hear, is an artist or group of artists who deserve to be paid for their hard work!! We are living amongst a generation where some seem to think it’s OK to download music for free, and this type of thinking is being passed onto our younger generation. Time to put a stop to it and start educating people about the impacts of illegal downloading and how it negatively effects the artists that they think they are “supporting”.

  10. It’s amusing to see some of the active members/contributors of “Balanced Copyright For Canada” (an industry backed astroturfing group come to this site – congrat guys).

    The issue is not one of piracy (that big scary word that the industry likes to use) but of consumer rights and fair use.

    Bill C32 is geared towards the industry and the so-called digital locks.
    When I hear words like “consumers choice” and “Canada’s economic wellbeing”, I have the feeling we will have less….

    Onerous DRM will only turn off honest consumers, turn some into “criminals” or stop them from buying the industry’s products…

  11. I think it is unfortunate that MD Dee belittles those with whose opinions s/he disagrees as “astroturfing”. The best way to disagree is surely to respond to the points made, not to attack those making them or the nobility of their perceived motives. In the same vein, I am not sure that whether the issue is about piracy or about consumer rights is truly an either/or question. Surely it is about both. If consumers avail themselves of rights they do not have, then they are indeed engaging in piracy. The question therefore becomes that of what rights they ought to have — a worthwhile debate.

    Mr. Freen is correct that copyright protection is especially premissed on creating incentives for ongoing investment of time and money in creating new works. Mr. Freen suggests that this premise may be incorrect, which is an interesting debate. But he does not give any reason in support of his position. Perhaps, indeed, creative works might attract the same investments of effort and capital even if artists were not provided the option of availing themselves of DRM protection, nor of granting others the right to do so on their behalf. I just don’t get why.

  12. I agree with Maia that music creators should be paid fairly for their work and congratulate her on speaking her mind.

  13. As a consumer right advocate my views may be a little different than many of those here, but I do agree that artists and consumers ‘rights’ do not have to be exclusive.

    Right off I want to make clear that as one who advocates fair use of media for consumers, I do not in any way condone piracy or think artists should not be compensated for their work (unless they choose to give it away).

    My main assertion in this post is the relationship between the artists and the consumers is broken. Artists feel animosity to down-loaders and consumers feel ripped off by the distribution companies who want to ding for everything and deny flexibility in the use of legitimately purchased content.

    There used to be a time (and still is thankfully to some extent) where fans respected, even loved?, their performers. I’m sure most artists are not just in it for the money, appreciate their fans and want to please them with their talents. Yet we have have high profile examples such as Gene Simmons who oozes greed and hate.

    Then we have the RIAA suing people for MILLIONS of dollars for a couple dozen songs? The level of punishment to damages far exceeds that of much more serious crimes such as fraud or even serious traffic violations (which can lead to death). This is what people remember and creates an atmosphere disrespect for all artists, not just the idiotic ones.

    Artists who say they deserve to be compensated for their hard work are correct, they do. But hard work does not nessasarily guarentee any compensation. As an artist you are selling a product, yourself, to the public. If the public does not value your work then they will not compensate you for it. Part of your value is the perception of yourselves, if this is tainted by the ridiculous behavior of such organizations such as the RIAA/MPAA and by extension the CRIA then your product decreases in value in the eyes of the public.

    Those who download and never give back are theives in the sense that they are a drain on society. Just as are welfare bums, incarcinated prisoners, tax dogers etc. On the other hand some people who download are often some of the biggest purchasers of media where downloading is used as a preview and discovery tool.

    To sum up: TPMs will be bypassed, downloading will continue and laws or lawsuits will not change that because of the scale involved. The solution I think is to switch from a punitive advesarial approach to one of education and good will. Instead of crying how piracy hurts artists, instead make efforts to offer products and solutions that consumers want. The world has changed, it’s said time and time again but it’s true that ‘Business models need to change’ as well. The adveserial approach will not fix anything. We need to think outside the box and this will disenfranchise many of the industry players, but it still has to be done. A proactive, positive approach is the only way to do this sucessfully. The incumbant indutry will not go along with this unless enough artists stand up to them instead of going along with their ‘attack on consumers’ diversion tactics.

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