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The statistics to argue for copyright enforcement is apparently not there. Good grief. By Ernesto.

According to the US Constitution, copyrights exist to “promote the Progress of Science and useful Arts”. It’s meant to facilitate and encourage artists to create content, which the public can enjoy. But is this how copyright still functions today? Texan A&M law professor Glynn Lunney Jr doesn’t think so.

We’re all familiar with the statement that piracy is “killing” the music industry. It’s one of the main arguments used to argue in favor of stronger copyright enforcement and legislation. The underlying idea is that strong copyright protection ensures that artists get paid. More money then opens the door to more artistic creations. But is that really the case?

Glynn Lunney Jr, law professor at Texas A&M University, has his doubts.

When the first wave of widespread online piracy hit in the late ’90s, copyright holders called for stronger protections. This eventually resulted in the Digital Millennium Copyright Act, commonly known under the acronym DMCA, which was passed nearly 20 years ago.

At the time, Professor Lunney declared that this would be the death of copyright. The DMCA would mainly serve the interests of large monopolies, not the independent creators, he envisioned. This would kill the true purpose of copyright, which is the progress of arts and science, as defined by the constitution.

In a new follow-up essay, Lunney looks back at his earlier predictions, with fresh evidence. As it turns out, he was wrong. The DMCA did little to stop the piracy epidemic. But while music industry revenues tanked, there was still plenty of creative output. The professor doesn’t retract his early criticism of the DMCA, but he now sees that copyright never really served to promote the public interest.

In an ideal world, more money should lead to more creative output, but according to data presented in Lunney’s new essay, the reality is quite different. Instead, it suggests that more money leads to less creative output. Relying on music sales data dating back to the ’50s, adjusted for inflation, and comparing that to a database of most-streamed tracks on Spotify in 2014, the professor reveals an interesting trend. There is no greater preference for music created in the high revenue periods, on the contrary in fact.

This is backed up by other data presented in Lunney’s book Copyright’s Excess, which also fails to find evidence that more money means better music. “There is no evidence that more money meant more or better music. To the contrary, when I found a statistically significant correlation, I found that more money meant fewer and lower quality hit songs,” the professor writes.

The question is, of course, why?

According to the professor, it’s simple. Overpaid artists don’t work harder; they work less. “These misdirected and excess incentives ensure that our most popular artists are vastly overpaid. By providing these excess incentives, copyright encourages our superstar artists to work less,” Lunney writes. This suggests that more money for the music industry means less music. Which is the opposite of the true purpose of copyright; to facilitate the progress of arts and science.

It’s a controversial thought that relies on quite a few assumptions. For example, looking beyond the big stars, more money can also mean that more artists get paid properly, so they can make a decent living and dedicate more time to their music. Also, even in the lower revenue periods, when music piracy is at its height, the top artists still make millions. The professor, however, is convinced by the data he sees. Adding to the above, he shows that during high revenue periods the top artists made fewer albums, while they produced more albums and hits during tough times.

“As a result, when revenues were high for the recording industry, as they were in the 1990s, our top artists produced fewer studio albums and fewer Hot 100 hits in the first ten years of their career,” Lunney writes. “In contrast, when revenues were low, both in the 1960s before the sound recording copyright and in the post-file sharing 2000s, our top artists produced more studio albums and more Hot 100 hits.”

Among other things, the data show that the most prolific artists in the study, the Beatles and Taylor Swift, had their first Hot 100 hits in 1964 and 2006, respectively. Both were low revenue years.

It’s a thought-provoking essay which undoubtedly will be countered by music industry insiders. That said, it does highlight that there’s not always a positive linear link between music industry revenue and creative output. “For the United States recording industry over the last 50 years, more money has not meant more and better music. It has meant less. The notion that copyright can serve the public interest by increasing revenue for copyright owners has, at least for the recording industry, proven false,” Lunney notes. “Copyright is dead. The DMCA did not, however, kill it. Copyright, in the sense of a law intended to promote the public interest, never existed at all. It was only ever a dream,” he adds.

And the DMCA?

Ironically, major copyright groups are increasingly complaining that the ‘outdated’ law is not fit to tackle the ongoing piracy problem. Instead, they see the DMCA’s safe harbor as a major roadblock which allows services such as YouTube to “profit from piracy.”

The same YouTube, however, is used by tens of thousands of artists to create content and get their work out to the public. It’s proven to be a breeding ground for creative talent, some of which have grown out to become today’s biggest stars. Even those who started as ‘pirates’…

Copyright, as we know it today, is not dead, but it sure is complicated.

Note: TorrentFreak is a publication dedicated to bringing the latest news about copyright, privacy, and everything related to filesharing. We are not a news aggregator, but focus on unique and fresh stories. TorrentFreak is where news and filesharing collide. We try to be the source of all the latest breaking news in the p2p world. Every year we also publish an in-depth review of VPN services. TorrentFreak was founded by Ernesto Van Der Sar and independently incorporated.


  2. I believe this article is deceptive at its core and one should not mistake their interest in the sharing of ROIOs and other rare music content, with what this piece is advocating.

    I say it is deceptive, as the prevailing logic in this piece is that hit singles = quality output. He uses examples of the Beatles in 1964 and Taylor Swift in 2006 to substantiate his mess of an argument. Not only is this comparison like the pairing of a supermarket product with real art, but it misses an important historical fact, namely that the real quality period of The Beatles was not in 1964, even if they did produce a huge amount of material in that year, but it was from late 1965 (beginning with Rubber Soul), into 1968. This is when they produced the music that “changed the world”, and also had a lot of money in their hands in this period, when they did it. So they didn’t perform better with less cash, as he suggests.

    To say that artists are more productive when they have less cash is misleading, disgusting, and wrong. It completely ignores, for a start, the way the industry has changed in the time period he mentions. In the world today, the major superstars are mostly overproduced, and have a huge amount of revenue spent on them by the industry, to guarantee its return. The material that this process produces has nothing to do with quality at all, even if it produces hit singles. This aspect, of the way the process works today, is probably the reason he has developed this argument, ignoring the concept of quality in favour of analysing blunt financial return as the only goal of the artistic process.

    Historically, however, it was the artists, already successful, who had huge amounts of money behind them that produced the masterpieces we continue to be in awe of today. It isn’t just The Beatles I am talking about here, who produced the likes of Sgt pepper when they were making a lot of money, but it equally applies to the ‘Great’ Pink Floyd albums from ’73 to ’79 (or even, seeing you are posting them at the moment, the classic Beach Boys efforts like Pet Sounds and Smile. They were rich then, yet these efforts are their masterpieces). You can go on from here. The reason why the industry is not responsible for this level of greatness today is because it has stopped supporting real artists. The people around today with the artistic capacity to produce the modern equivalents of what The Beatles and Pink Floyd produced back then, are instead stuck on small independent labels (if they are lucky) without the resources to polish their work, to improve what they have from just being ‘good’, into a masterpiece. This process takes a lot of money and time, and it is the complete reverse of what this man is suggesting.

    At the beginning of the article, he writes that the purpose of copyright is to “promote the progress of science and useful arts.” In other words, at least partly, it is there to protect artists, and see that society continues to benefit from their efforts. Under this process, historically, as I said, we have seen the creation of musical masterpieces that up to fifty years and later, people are still choosing to listen to, rather than what is produced today, by what one can only call ‘production line crap,’ when one compares it to the noble aims of these past artists, who sought to expand the concept of pop music, into an art form. For him to generalise this way the industry has mutated, ignore the concept of what real quality is (i.e. not just financial return); and to draw this together to say that copyright today is dead, is worse than misleading. Instead, he should be seeing the industry for what it is today, and advocating major change in the artists they choose to support (not necessarily to the exclusion of the Taylor Swifts, they just need greater diversity). If he followed this argument, he then might see the point in copyright being supported, for the right reason, in the creation of art, and the necessary support of the artists in order to do so.

    By J.G. on Jul 19, 2018

  3. Great post J.G.!! I started an in-depth reply, but I canned it after reading yours that was exactly where I was heading. So, I thought it might be interesting to see if others would share their thoughts on the financial aspect without the Copyright confusion.

    I was a big Beatles and top 40 radio fan in my preteens, in the mid 70s because they were considered safe by my parents, who also fed me big bands and vaudeville. However, by ‘79 my tastes expanded exponentially thanks to the discovery of females, alcohol, certain mood altering substances, and the experiences that came with songs, and bands I found in the vinyl my old man sold in his used book shop, hunting other record shops, live shows, and college radio.

    I have no shame admitting, and I’m sure that humanity would, to a degree, that once I learned to “score” with the help of the right song, by my mid to late 20s I had no real need to seek out new music. I knew I could get the right head, or piece of ass with the right soundtrack.

    I said no real need, but being one who needs music in his life, I did have the desire to seek out all genres of new and old in my adult years and still do, although there are many groups I never revisited.

    I think, like young children, we are imprinted in our formative years and find the tools to survive and when we finally get a firm grasp we sometimes find no need for more, due to satisfaction, lack of time, or finances.

    All this mumbo jumbo of high and low earning periods should be taken into to consideration but I don’t think it’s as complicated as Professor Lunney is trying to make it. The labels, managers, and promoters surrounding the top stars and newcomers realize this and take the appropriate actions.

    Why would The Stones, McCartney, Floyd, Springsteen, Dave Matthews, Neil Young, etc make great efforts to put out new albums when radio is only playing the songs that we want to hear from the last 20-40 years, and people seem content paying $50-$200 for a two hour show and another $50-$100 for a hot dog and t-shirt?

    And those same protective guardians keep tabs on the states of economy and pull those acts off the tour buses when the tickets are not selling. Then it makes sense to give them a little rest and shuffle them back into the studio because, well, why not?

    They take a few months to put down some new tracks, release some singles for download and pull $15-$20 out of the pockets that can’t afford the $200-$400 night out with their sentimental partners who only want to hear their 6 favorite songs anyway.

    Radio is only going to play one new song for a few months after the release, but the morning tv show circuits, are enough to keep them happy with the slight uptick in royalties on those classic tunes.

    For the really little guys with no labels or budgets, many of them find comfort putting out albums when they can and playing as many small venues or festivals they can squeeze a 30 minute set into, with the internet, public radio or local news articles being the only exploitation available. Davina & The Vagabonds, Aztec Two-Step, and Anvil are a few that come to mind.

    It is sad and pathetic for some, but they do have lots of mouths on contract to feed. I was pretty bummed to see Ringo on a show doing Photograph which is almost as old as the DJs that might play it once or twice a day on the oldies.

    We know Morrison was ticked when he found out Light My Fire was being considered for a Buick commercial but I am positive Joey Ramone would be rolling in his grave if he knew that I Wanna Be Sedated is being played on musac in supermarkets

    By Whundh Umfuqh on Jul 20, 2018

  4. Interesting what you say. I am younger and started listening to the radio around age 10 in 1984. Personally, I don’t think a lot of the artists you mention, let alone the Beatles or Stones would have been given proper record deals, if they were new today.
    Its not that the ‘production line’ process is new either, it has always been around, just now, the labels are so risk averse and short sighted that they no longer see the point in making something great, when they can still profit from the other.
    One example for me anyway, of a modern artist who would have been huge if he’d started in the 70s is Jason Molina. Very similar singer- songwriter format to Neil Young etc. However, in this age, (he was on a pretty decent indie label I might say), after an absolute mountain of releases from late 90s until roughly 2009, he ended up dying with nothing to his name at all, as he couldn’t afford his medical bills. To me, anyway, this highlights the sickness of the industry and its inability to support artists. To advocate the death of copyright, and hence direct even less support to the people who need it would only mean more of the same for other struggling artists, and meanwhile, the plastic hits will keep rolling.

    By J.G. on Jul 20, 2018

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