Yesterday, the Canadian Recording Industry Association made its submissions to an appeal court in an attempt to overturn an earlier decision which held that file sharing (including music files) is legal in Canada. The CRIA’s president, Graham Henderson, is quoted as saying: “We would prefer not to be in the courts, but illegal downloading has a drastic effect on the careers of artists.”
With all due respect to Mr. Henderson, isn’t it putting the cart before the horse to call it “illegal downloading” when that is the very issue to be decided by the court? The point of the matter is that a judge on a motion held that downloading music files is not illegal. Calling it “illegal downloading” is nothing more nor less than spin—towing the party line.
Time for some clarity.
Let’s leave aside my vehement opposition to more stringent copyright laws and my view that such laws would only introduce a chilling effect upon culture generally. Let’s leave aside my disdain for those who claim that today’s copyright legislation (in Canada) is neolithic. (As I see it, far more neolithic is today’s recording industry business model.) I have expressed my views in an earlier entry. Or, for an American take on these issues, consider what Lawrence Lessig has to say.
Let’s leave all these more erudite considerations aside and look to what is really at stake—money.
We have to consider what is at stake for a man like Graham Henderson before we take seriously his moral indignation and his high–minded concern for the artist. Graham Henderson used to practise entertainment law at McCarthy Tétrault LLP. In fact, he married his best client, Margo Timmins of Cowboy Junkies fame. His interests are a little more personal and a little less altruistic than we are led to believe. At least in part, what he’s lobbying for is an increase in the Henderson–Timmins family income.
Does more money make a better album? My favourite recording by the Cowboy Junkies is their first—The Trinity Sessions—which they made for $250 and recorded in Trinity United Church here in Toronto. No doubt, on the basis of this unexpected success, Mr. Henderson negotiated a multi–album contract with a substantial label. While I enjoy their later recordings (and yes—I purchased them all at retail outlets for real money), they have never matched their rough–edged first effort. The same thing has happened to the Barenaked Ladies. They put together a fabulous demo tape—the most successful in Canadian recording history—and landed a five–album deal starting with Gordon, which included a lot of material from their demo. Not until their fifth album, Maroon (the final in their contract), did they recover something of their initial freshness. This is a phenomenon common in professional sports. A rookie southpaw has a stellar first season. On the strength of this performance, his agent negotiates a lucrative three–year contract. In the first two years, his performance ebbs a little, and then in the third year, when his contract is coming up for renegotiation, his performance miraculously improves.
This caterwauling about “illegal downloads” isn’t about principles; this isn’t about right and wrong; this isn’t about nurturing creativity. It’s about money; it’s about economics; it’s about incentives.
So, Mr. Henderson, stop reciting the party line. We’re tired of it. We don’t believe it anymore.
Update: The CRIA has rebranded itself as Music Canada.