'Piracy': Why the Cure's Robert Smith doesn't get it

In what some have called a stubborn refusal to recognise that business models must adapt with the times, Robert Smith of the Cure has repeated a common refrain--one we are well used to hearing from the likes of the RIAA, among others--that we must "think of the artist".

Responding to online criticisms of an earlier blog post he made, Smith has let it be know that he thinks that "IT SEEMS A FEW PROFESSIONAL APOLOGISTS (YOU HAVE TO LOVE THEM!) OUT THERE DISAGREE WITH MY 'EVERY ARTIST SHOULD VALUE THEIR ART' MUSING AND THINK ITS OK FOR ART - MUSIC IN PARTICULAR - TO BE MADE AVAILABLE FREE FOR ALL...". He then goes on to berate Radiohead's pay-what-you-want In Rainbows marketing ploy (though he does not seem to have heard of Trent Reznor's cleverer successes with free/pay business models). He is, in short, very angry at the current state of things.

But the so-called "PROFESSIONAL APOLOGISTS" do have a point. But what is that point, and why is Robert Smith wrong?

To answer, we must go back to basics. Downloading copyrighted music without explicit permission is illegal. It is called "copyright infringement" (this goes for films, books, and the like as well). If you do it, you are "infringing" the copyright of someone else. It is not technically (in a legal sense) "piracy", however. It is "infringement".

While that is true, let us see what common usage, as highlighted by the Oxford English Dictionary, has to say. "Piracy" here is "[t]he practice or crime of robbery and depredation on the sea or navigable rivers, etc., or by descent from the sea upon the coast, by persons not holding a commission from an established civilized state; ... a single act or crime of this kind." In other words, it is what we find happening these days off the coast of Somalia.

A figurative extension of the idea that also appears in the OED, however, states that "piracy" is "[t]he appropriation and reproduction of an invention or work of another for one's own profit, without authority; infringement of the rights conferred by a patent or copyright." The earliest appearance of this use of "piracy" dates back to 1771, according to the OED. (Wikipedia gives this figurative usage an even earlier date, noting that "Daniel Defoe in 1703... said of his novel True-born Englishman: 'Its being Printed again and again, by Pyrates'.")

But what is being "pirated" or, in legal terms, "infringed"? What is, to put it in Smith's emphatic capitals, "ART"?

Now those are good questions. "Art" is something we seem to think we know when we see it, but giving it a precise definition is rather harder to do. We could turn again to the OED: "art" is "[t]he application of skill to subjects of taste, as poetry, music, dancing, the drama, oratory, literary composition, and the like...."

Well, okay, but is "art" valuable? Well, that is a question of individual taste.

A "fetishist" may pay for surreptitious photos of an anonymous old woman's vericose-veined legs tensing underneath her desk at the head of a classroom or for a picture of a bloody corpse being cast into a makeshift mass grave in Nicaragua or Bosnia (did something fall off just there--oooh!). Hey, if that is your thing!

A "connoisseur" may pay for a stirring recording of Handel's Messiah in an accoustically favourable setting ("God loves us, yes!") or the cleavingly satisfying digital trickery of The Return of the King (what just happened to that orc amidst the moving score provided by Howard Shore?! "Nice one, Gimli! One point!").

What, weird that? I'm sure an artist will get it, especially an established one like Robert Smith.

But why do the punters pay? This is the crux of the matter, in legal terms (which seem to be all that matters).

People pay when they can't get what they want any other way. Money represents a sacrifice. Why sacrifice when you don't have to? Indeed, and this is at the heart of the matter, as everyone except for Robert Smith and the RIAA seem to know. Copyright infringement is happening on a massive scale because it can. It just needs an Internet connection to happen.

But what went before, and why do the attitudes that prevailed then keep coming up now?

We tend even now to think of record companies (and film companies) as permanent fixtures on the landscape. They have "always been around", and their products we have "always consumed". But there was a time when they did not exist--a time when copyright did, however, exist. Thinking back to the days before recording and reproduction technologies, we find companies that produced sheet music. People would buy songs in the form of sheet music they could play on their pianos and sing of an evening, family and friends gathered round.

Before that time and before copyright, artists had to depend on the patronage of wealthy individuals to whom they often dedicated their works. But after copyright, the works of artists have sometimes (when they were lucky) been promoted by companies whose capacity to control channels of distribution (whether it be the distribution of sheet music, audio recordings on vinyl or CD, or films on DVD or Bluray) has led them (and some fortunate artists) to acrue great wealth. It has of course been in the interests of such companies to support stronger and stronger copyright laws, to protect their business models (their collective monopoly on the channels of distribution).

These companies, however, have found their traditional channels challenged, to say the least, by the Internet. All the lawsuits and new laws cannot transform the current digital landscape back into the analogue world that brought them such riches. If they are wise, they will adapt their business models to suit the new realities. If they are wise, they will pay more attention to Radiohead and Trent Reznor and many others who are thriving in this new environment--and they will learn from them.

Robert Smith could learn from them too.

All that said, at the end of the day, Robert Smith or anyone else with a copyright on anything is the one who has the right to determine how that thing is used and distributed. Outdated business models notwithstanding, the law is the law, and making use of copyrighted works in ways that copyright-holders do not permit is a breach of the law.

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