A songwriters take on file sharing....

Date: 28 Jun 2003 19:46:00 GMT
Newsgroups: rec.music.makers.songwriting
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WRITTEN STATEMENT OF PHIL GALDSTON
SUBMITTED TO
THE SUBCOMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE COMMITTEE OF THE JUDICIARY
OF THE HOUSE OF REPRESENTATIVES
OF THE CONGRESS OF THE UNITED STATES
September 26, 2002
INTRODUCTION AND BRIEF BIOGRAPHICAL INFORMATION
Mr. Chairman: My name is Phil Galdston, and I am grateful for this opportunity
to share some of my thoughts on musical intellectual property and the threat
posed to the creators and owners of it. Just as importantly, I thank you for
your willingness to examine issues crucial not only to songwriters and music
publishers, but to music lovers across the nation and around the world.
As the biographical information I have provided will attest, I am a composer,
lyricist, and music publisher. I am not a recording artist (although once upon
a time I was one). I am what is known as a pure songwriter -- one who makes a
living and supports his family by writing songs and submitting them to
recording artists, producers, managers, labels, and anyone else who may help me
to get them recorded and eventually exposed to the public. For the record,
although I do not speak on their behalf, you also should know that I am a
long-time writer and publisher member of ASCAP (the American Society of
Composers, Authors and Publishers) and a National Trustee and President of the
New York Chapter of the National Academy of Recording Arts and Sciences, the
group that bestows the GRAMMY© Awards.
Over the course of my career, I have been fortunate enough to score some major
hits, and I'm fairly rare in that I have had songs appear on most of the major
charts. Among my best known songs are: "Save the Best For Last" and "The
Sweetest Days," which are among seven of my compositions recorded by Vanessa
Williams; "Fly" and "The Last To Know," which are among five recorded by Celine
Dion; "One Voice," which was recorded by Brandy, and was UNICEF's theme song in
its 50th anniversary year; "World Without Love," which was a top ten record for
the late country star, Eddie Rabbitt; and "It's Not Over (Til It's Over),"
which was a top ten pop and rock hit for the rock band, Starship. My songs have
appeared on more than 60 million records around the world, and I have been
honored with a number of prestigious awards, including a Grammy nomination for
Song of the Year and ASCAP's Song of the Year award.
The hits and the awards aside, I am a songwriter and a small-business owner. My
greatest achievement, and my greatest asset, is the catalogue of over 600 songs
I have amassed in 37 years of writing. I am here today because that asset -- my
personal property -- is under attack and is the subject of outright theft by
those who obtain it without my permission and without compensating me. While
sharing my thoughts on that subject, I hope I can shed some light on a few
additional, and significantly related ideas, including the basic understanding
of music rights as our society defines them and the abundant confusion among
the different rights of record labels, recording artists, and songwriters. But
please make no mistake about the situation songwriters face: our livelihood is
seriously and negatively impacted by unauthorized downloading of our work
through peer-to-peer networks.
REAL PROPERTY vs. INTELLECTUAL PROPERTY
It would be nice to say that the business community in which we operate has
developed a solution to this problem. But that is not the case, and, what's
more, it may be extremely difficult to achieve in the short run. While there is
little doubt in my mind that the solution to the crisis brought on by
unauthorized downloading will be multi-faceted and will require a combination
of effective digital rights management technologies, better online access to
digital copyrighted material, better enforcement of copyright laws, and new
technologies to aid in enforcement, at least part of the solution requires that
our elected representatives help protect us.
To most people, the system compensating songwriters for the use of their
copyrighted work is murky at best. (The good news, I believe, is that it's no
more complicated than the oil depletion allowance or farm supports.) I've
noticed that most people who write or speak about music and the rights of those
who create it try to draw an analogy between intellectual property and
so-called "real property." You know, "downloading a song without the copyright
owner's permission is like stealing a bicycle," and the like. After many
attempts on my own and with colleagues, I've concluded that an appropriate
analogy probably does not exist. That tells me that what we create is rather
unique.
Real property is comprised of raw materials that are produced by someone else.
You just can't say that about songs. If I don't dream it up from my heart and
my head, the song will not exist. The question most frequently asked of
songwriters is "which comes first, the words or the music?" The answer is
neither. What comes first is the inspiration, in all its wondrous variety of
forms, none of which, or their final expression can be defined as "real
property." It is property, nonetheless.
RIGHTS TO A SONG vs. RIGHTS TO THE RECORDING OF A SONG
To understand the position in which unauthorized downloading places
songwriters, it is crucial to realize that, except in rather rare
circumstances, we do not sell our songs. We license them to record companies,
and other outlets, in return for royalties when and if they sell or are played
in broadcast media. For the purposes of this statement, I am going to focus
exclusively on the sales -- or mechanical -- royalty part of our revenue.
There is a given in the music community: "It all starts with the song." That is
not only true of a great record or live performance, it's true of the rights
that flow from a song's creation. And those underlying rights are separate and
distinct from the rights attached to a recording of it. It is not just
semantically incorrect to say that people download "record companies' songs."
Strictly speaking, the record companies only own their recordings of those
songs, not the songs themselves.
The significance of this is that all the angry talk about the major record
companies, and their failings (you know, "Why should I pay $18.00 for a CD with
only one good song on it?" and the like), when applied to the debate about
unauthorized downloading ignores this essential fact of ownership. So, a person
who downloads a record without authorization may be trying to punish what they
believe are big, bad record companies and greedy, selfish artists. But they're
punishing songwriters like me, the people in the creative process who can least
afford to be punished.
When I license a song to a record company, I receive no fee, no advance, no
payment of any kind. I will only receive compensation when, and if, the
recording of my song sells. If I am compensated, the rate, which is already
quite low, is set by statute. Frequently, as a condition of recording and
releasing a song, labels demand that songwriters accept three-quarters of the
statutory rate; in other words, six cents per copy sold instead of the current
statutory rate of eight cents. (This is another situation I hope Congress will
look into). Please note that, while we may be paid less, we are never paid
more. And since we're limited to a maximum of eight cents by statute, we can't
charge more elsewhere to make up for the loss.
WHAT SONGWRITERS ARE LOSING
Under law, the compensation we do receive is due us from every reproduction of
our songs, including digital downloads. However, we do not receive any
compensation for unauthorized downloads made through P2P networks, like KaZaA,
Morpheus, or Bear Share. Therefore, while songwriters can see the value of the
internet as a new and potentially vast source of revenue and exposure, while we
want music internet services, including peer-to-peer services, to succeed, we
must demand that we be compensated for the use of our work. That is our legal
right.
If, as the most recent studies suggest, there are over three billion
unauthorized downloads per month on all known peer-to-peer servers…well, you
can do the math and see what songwriters are losing. Moreover, every time
someone downloads a song of mine without my permission, I am losing all that
follows from it: the ability to support my family, the capital needed to
continue to re-invest in my business, and the economic incentive to continue to
create.
THE RIGHT TO GRANT OR DENY PERMISSION
In a peer-to-peer download, songwriters are losing something else: the right to
grant or deny permission for that type of use. Of course, this is an essential
aspect of ownership of any property. But in this case, it's a point
illustrative of the complexity of the interlocking benefits of the use of
songs.
For example, although a good number of artists write the songs they record,
their rights as recording artists and any artists royalties they may receive
from the success of their recordings are entirely separate and distinct from
those they enjoy as songwriters. By extension, my rights as a songwriter and
any financial gain I may derive from the success of a recording made of it are
distinct and separate from those of the artists who records my songs.
There are artists, labels, and artist-songwriters who may very well benefit
from permitting audience members to download their work for free. Unlike pure
songwriters, artists and labels have alternate sources of income and long-range
goals to promote. Celine Dion or Brandy or Beyoncé Knowles may profit more
from the sales of concert tickets or t-shirts than they lose from a free
download promoting their merchandise. The artist and label may decide that it
is more profitable to offer a free download in return for, say, an audience
member's e-mail address. That trade provides them with an opportunity to market
other products and services. Simply put, that is their choice; it should not be
imposed on me. (By the way, I haven't seen a lot of "PHIL GALDSTON, PURE
SONGWRITER" t-shirts for sale.)
SONGWRITERS ARE BEING PUNISHED FOR OUR SUCCESS
It is sad to me that, as a group, we songwriters are being punished for our
success. The fact that it is difficult to go anywhere in "the civilized world"
without constantly hearing songs -- the vast majority of them written by
American songwriters -- is tribute to the immense popularity of our work. Be it
a store, a mall, a movie theater, a living room with a TV on, a dorm room with
a computer, a restaurant with a radio playing, or even the much-maligned
dentist's office or elevator, the soundtrack to our lives is a stream of songs.
And I imagine that, for many, this ubiquity, born of popularity, is the source
of the misguided idea that, because music is in the air, it should or must be
free.
On the contrary, music is only in the air because my colleagues and I, through
inspiration, hard work, and perseverance, have put it there. We are due our
just compensation for its use, including via download. Just as importantly, as
individual creators, we are entitled to decide when and how it may be
downloaded. All of this is about the basic principles of private property --
principles that I have to believe most of those promoting or excusing or
defending unauthorized peer-to-peer downloads would defend in any other
situation.
HOW CONGRESS CAN HELP
What can Congress do to help copyright owners coping with the damage and the
continued threat from unauthorized downloads? Unless you're going to set up a
"copyright police" to investigate and prosecute this wholesale theft, we're
going to have to ask you to help us help ourselves. I wish I could see another
way around this, but I can't.
The unique problem we songwriters face when our work is pirated is that, unlike
the owners of real property, not only can't our property be returned to us, its
return would not compensate us. It is the unauthorized use in the form of a
download of our songs for which we can never be compensated. So we must find a
way to stop the unauthorized downloads.
We're probably most similar to the owners of satellites and cable systems, who
face no liability when they use electronic countermeasures to stop the pirating
of their signals and programming. However, at this point, due to the wide range
of many anti-hacking laws, our legal ability to prevent the theft of our
property through peer-to-peer systems is inhibited by a high degree of
liability. The Berman Bill, as I read it, would provide us with the ability to
stop these unauthorized downloads by granting us limited, carefully
circumscribed protection from potential liability for engaging in such
self-help. In my opinion, this piece of legislation - even understanding that
it may be possible to improve it - is a good first step.
I know that you can help us. I hope you are willing to do so. In the end, this
is not solely about just compensation or permission; this is about the health
of music. For, who will be drawn to a life creating music, if making music
cannot provide a livelihood? And very importantly, this also is about
respecting each other's property. We teach our children that it is wrong to
steal. Such unethical or immoral behavior, we instruct them, is never
acceptable. And yet, we currently turn a blind eye to the theft of songs from
the people who own them.
Finally, music, along with our other powerful cultural expressions, is one of
this country's leading exports. It is also one of our greatest cultural and,
some would say, political ambassadors. If we turn our back on those who create
it, what will we be saying to our composers and lyricists? What will we be
saying to our children? What will we be saying to the rest of the world?
Thank you.