Music free for the making

The illegal downloading of music in file formats has been one of the leading news stories of the decade, held nearly solely responsible for bringing the world’s major-label music industry to brink of extinction. One analysis by the Institute for Policy Innovation, cited by the Recording Industry Association of America (RIAA), concludes that global music piracy causes US$12.5 billion of economic losses every year, 71,060 jobs lost in the US alone, for a loss of US$2.7 billion in workers’ earnings, and a loss of US$422 million in tax revenues, US$291 million in personal income tax and US$131 million in lost corporate income and production taxes. 

However, virtually all studies of music piracy have focused on finished products. They don’t address the illicit use of the software that’s used every day around the world by recording artists, musicians, audio engineers and record producers to create that music. The notion, engendered by decades of music freely traded on the Internet, that music was free for the taking was apparently also being extended to suggest that music is also free for the making.

That was exactly the point of a ruling by the United States’ Southern Federal District Court of New York City in mid-May that found for plaintiff music production software maker, Waves Ltd, in its assertion that two New York City recording studios, Reckless Music, LLC, d.b.a. Skyline Recording Studios NYC, and Quadrasonic Sound Systems, Inc. d.b.a. Quad Recording Studios, had used or allowed to be used in their facilities illicit, or “cracked,” copies of Waves software.

‘In the Reckless d.b.a. Skyline case, the jury found that Waves had valid copyrights and that the defendant infringed on those copyrights,’ stated Guy H Weiss, the attorney who had represented Waves in the litigation. ‘The law is clear: a recording studio is responsible for the copyright infringement committed by its employees, independent contractors or customers. The courts are serious about protecting the rights of copyright holders, whether they are singers and musicians, or the software companies that allow the recording industry to mix and record their music.’

In the process of the hearings, the Federal judge instructed the jury, ‘[A] person is liable for copyright infringement by another if the person has a financial interest and the right and ability to supervise the infringing activity, whether or not the person knew of the infringement.’ Thus, says Mr Weiss, ‘Skyline could not rely on the defense that it did not know that its employees, engineers or customers were using cracked software. It had an absolute duty to stop the copyright infringement committed in its studios. In the Quad Studios case, the defendant admitted liability.’  Skyline Recording Studios was assessed US$30,000 in damages; Quad Recording Studios agreed to settle the case for US$50,000.

Gilad Keren, CEO of Waves, said he hoped the judgments would send ‘a targeted message to all users of illegal software’ that Waves and the software industry is serious about defending its rights and that this marked a turning point in its fight against the use of cracked software. ‘In the long-term, illegal software does not benefit anyone, as it hurts not just Waves, but all developers and manufacturers of software products including their distributors, retail partners and of course, loyal customers who have purchased legitimate, legal versions of the product.’ And, echoing the sentiments and the strategies of the music industry, Mr Keren added. ‘We consider a lawsuit the very last resort, but unfortunately it is a course of action that can protect our intellectual property and ensure that we can continue to develop and bring to market the right tools for the recording, broadcast and post-production industries.’

Losses Are Hard To Quantify

But most instances of piracy of professional audio software don’t have such clear-cut resolutions, and the problem remains rampant. According to the International Music Software Trade Association (IMSTA), a trade group headquartered in Toronto, the narrowing ratio between sales of computer-based music hardware products such as sound cards (the group uses that statistic to measure the implied demand for enhanced audio capability on PCs) and the sales of professional audio software indicate that the latter is also increasingly being pirated. Referencing data from the National Association of Music Merchants (NAMM) Global Report, in 1997 the total US sales of sound cards was about US$15 million and the total sales of music software, including from market-leading Avid/Digidesign’s Pro Tools, Steinberg’s Nuendo and Propellerhead’s Reason, was about US$85 million, for a sales ratio of software sold to sound cards sold of 5.66 to 1. However, while both sound card and software sales have increased appreciably since 1997, that increase has not been proportional – sound card sales in that period increased twelvefold to US$185 million, while, software sales less than tripled to US$235 million. Similarly, sales of keyboard controllers, which generally require software to operate, have jumped from 12,750 units sold in 1997 to 88,500 in 2008, while software sales have shown nowhere near that sort of exponential increase. All this suggests, says the organisation, a concomitant increase in software piracy.

IMSTA director, Ray Williams, acknowledges that the conclusion is inferential but asserts that it’s also undeniable. ‘If someone buys a synthesiser, they can plug it in and play, but if they buy a keyboard controller, it’s obvious they’ll need to buy sound-making software to make it work,’ he explains. ‘If people are buying sound cards for computers, it indicates that they’re using [music production] software for those sound cards, and the [disparity] between the sales of the two categories clearly shows that professional audio software isn’t being purchased as much as it’s apparently being used.’

Mr Williams is the first to concede that, compared the US$53 billion of worldwide PC software piracy losses in 2008 reported by the Business Software Alliance, or even the RIAA’s assertion of US$12.5 billion lost to music piracy in the US, US$85 million a relatively small amount. But, he contends emphatically, the crucial – and ironic – nature of what’s being stolen makes it a critical one. ‘Once people who have been downloading music without paying for it decide to make music for a living, they realise that the theft of intellectual property – theirs and the software the rely on to make the music – can really affect them,’ he says.

“Free” Music

The culture of “free” music has become so ingrained during the two decades of the online music era that even that paradox is lost on many younger people. When he gives seminars on the topic at the numerous media academies around the US, Mr Williams says he is still confounded by students who snicker when he asks when was the last time they bought music. ‘Even there, where they’re learning how to produce music, they still don’t see the connection,’ he complains.

But those media academies are key fronts in the battle against pro audio software piracy, thanks to thousands students mostly in their teens and twenties who are signing up to pay as much as US$40,000 for a degree in music production. IMSTA is partnering with SAE, the world’s largest media school – it has 53 campuses in 24 countries throughout Asia, Europe, Australia and North America – for IMSTA Festa, a day-long music software expo that will be held at SAE’s Manhattan school on September 25, the first of its kind in the US (IMSTA has sponsored two previous ones in Japan). It’s an opportunity for IMSTA’s software-maker constituency to grab additional market- and mind-share in an increasingly crowded market space – IMSTA lists 46 product manufacturers and that many again retailers and distributors of pro audio software – and for IMSTA to imprint its slogan of “buy the software you use” onto the laptop music community.

SAE students are given an Apple Macbook loaded with Apple’s Logic recording software as part of their tuition, though that laptop will likely hold other audio programs, such as Propellorhead Reason, Steinberg Cubase, Ableton Live, for audio, and multimedia packages like Apple Final Cut, Avid Mediacomposer, Autodesk Maya and Adobe CS bundles by the time their owners graduate. Once paid for, those computers are the property of the student and the school has no legal control over their contents, says Silvan Jongerius, corporate relations manager at SAE’s Amsterdam school, though the school administers license agreements worldwide and employs a variety of controls, such as dongles and iLoks for its shared softwares. Piracy has grown as an issue as software has assumed the central role in modern music production, he acknowledges. ‘More and more music is created, recorded, mixed and mastered with the use of software packages – essentially, software is the future [for] the audio industry,’ says Mr Jongerius. ‘Software piracy destroys a healthy market and work environment for our students in the future.’

There are also very practical reasons why media academies try to minimise music creation software piracy. Besides damage to its reputation, Mike Sangrey, director of technical services at Full Sail University in Orlando, Florida, says, ‘Pirated versions could potentially conflict with our [computer] systems.’

Copies of professional audio software aren’t as easy to download as music or even movies – some programs are relatively huge, such as Cakewalk’s Sonar program, which needs four DVDs to hold its data. But, says Cakewalk vice president of marketing Carl Jacobson, those who want it but don’t want to pay the US$400-plus that a legitimate copy of the full program costs have no problem letting a download run overnight from a BitTorrent P2P site. Stiff competition and the desire to avoid annoying legitimate users with the glitches sometimes caused by high levels of data encryption mean that music recording programs can often be easily ripped from discs for downloading or copying onto discs for resale, the preferred mode of illegal sharing in Russia and China, both fast-growing music-making markets.

Digital technology’s fundamental role in music culture has transformed what was once a technical challenge into an ethical one. Software’s place in that challenge – whether to use AutoTune on a vocal or to use a legitimate copy of AutoTune on a vocal – underscores the intensity of that role.