Negativland Statement

in Support of Peer-to-Peer File Sharing

We, the members of the musical group Negativland, write this in support of the defense in National Music Publishers Association (NMPA) v. MusicCity (creators of the Morpheus peer-to-peer file sharing program):

First, some background on who we are, and why we have been asked to write this statement:

Negativland has been an independent band since 1980. We make our own music in our own studio and release it into the physical world via our own label, Seeland Records. We sell them worldwide through a large independently owned distributor, and sell enough of these CDs to make a modest living from what we do. Since 1995 we have maintained a mail-order website, www.negativland.com, to sell these hard goods on the Internet.

Negativland works in musical collage forms involving "found sounds" of all sorts, including other music collaged with our own music. We have released over 20 CDs and published a book about our music and the legal issues surrounding it entitled "Fair Use: The Story Of The Letter U and The Numeral 2". We've written essays and articles for NYU Law Commentator, Billboard Magazine, Keyboard Magazine, The Baffler, and College Music Journal. We've lectured on our work at the Universities of Arizona, Virginia, Tennessee, Georgia and Chapel Hill, as well as Evergreen State College, UCLA, Seattle University School of Law, Cranbrook Academy of Art, various venues in Washington D.C., New York City, Toronto, St. Louis, Honolulu, Melbourne Australia, etc. Most recently we spoke at Duke University at the Conference on the Public Domain. Our recorded work and writings are often used in university classes dealing with the intersection of intellectual property issues, art, new technologies, and the law. Our 1987 LP/CD "Escape From Noise" was recently named as one of the top 50 best electronic music records of all time by MUSIK magazine in the UK.

As musicians, we are happy to support peer to peer (P2P) music sharing technology on the web as facilitated by such programs as Morpheus. As artists, we support and actively promote the right of such file sharing software and networks to exist and to operate in the uniquely new digital domain of non-material cultural exchange that is the World Wide Web.

Besides selling our work in the form of compact discs, we encourage and promote the free exchange of our own music on the Internet using file sharing programs and P2P networks. We consider this new opportunity to share our music and ideas with others, and for others to share our music and ideas with each other, to be good for us, good for society, and good for art. We find it over-reaching when the mainstream music industry attempts to determine whether or not we can share whatever we come into digital possession of when there are so many non-infringing uses of this technology. And we find it curious that large corporations get the benefit of the doubt in this brand new context that is so alien to copyright's own brick and mortar premise, namely, that supply is always limited.

On the Net, supply is irrelevant, there is only demand. The fact that this plays havoc with copyright "protection" assumptions is not necessarily the best reason to suppress something entirely new and useful to everyone else - free and open P2P activity. The question should be: Should our unbendable copyright laws apply the same on the Net if it's going to also suppress P2P exchanges of all kinds there? What about the benefits of preserving THAT before it's too late?

As musicians who make a living selling our music, we believe in the spirit of copyright as set forth by our founding fathers who designed copyright to be a limited right, seeking to balance private profit and personal possessiveness with the greater public good inherent in free and open access to all ideas. Corporate America has ignored this original mandate and now seeks to re-make copyright into an endless and exclusive private property right through lawsuits such as this one. The Sonny Bono Copyright Term Extension Act's extension of copyright to 75 years plus the life of the creator means that NOTHING created in our lifetime will ever reach the public domain. Lobbied into existence by Disney and the RIAA, this new law betrays the original intent of this nation's copyright laws and is a disturbing preview of the direction our society is heading in. It ignores a basic human fact: Culture healthily evolves when it is shared. And we consider P2P systems to be a new and unexpected part of that sharing.

We also consider P2P to be very useful free advertising for the music we do sell as hard goods. And despite the plaintiff's claims of lost profits from the advent of P2P systems, independent musicians have far more to gain by its development. For thousands and thousands of musicians in the world, sharing their music via MP3 files is the ONLY way they share what they do with others. Society, and particularly artistic creativity, benefit dramatically from the Net's free and open exchange environment and we see no viable reason or way to stop it with any of the recently proposed legal and technological constraints that seek to criminalize and prevent unauthorized free exchange on the web.

We ask you to ignore for a moment the very vocal and influential minority of private interests who brought this case before this court and consider the much larger overall benefits which the Net's free and open exchange environment provides to our entire culture.

Of the 3 billion pages that are currently available on the web, only about 30% of them are for commercial use. The other 70% are simply there to be there, put up by millions of people like you to share information, news, opinions, ideas and personally arranged culture with each other. This includes file sharing; and file sharing sometimes includes music. Since the Internet appeared, musicians have been increasingly using music file sharing as their own form of independent exposure and distribution, as well as collaborating with others through the Net. They most often do this without any profit motive involved, just to hear and be heard.

This new mode of sharing, a virtual "public domain," is a startling and positive development in grass roots culture (the birthplace of all) and one that is not often mentioned in the optimistic or pessimistic news stories about "e-commerce" in the business sections of our daily newspapers. The popularity of Napster and other file sharing programs like Morpheus, Gnutella and FreeNet tell us a lot. They tell us that in this era where every single square inch of the physical world seems to be turning into one big billboard and where all public spaces have become an endless shopping mall, that we humans crave shared spaces for OURSELVES. Places to talk and share our thoughts, our ideas, and what we love with one another. Places that are not mediated or circumscribed by the intrusive controls of private commerce. For those of us able to access it, the Internet is such a place.

Corporate music, on the other hand, appears to see the Internet as another medium for commercial placement and the selling of products. As they ignore the basic design of Net technology which is so persistently opposed to commercial forms and functions, they either attempt to litigate it to death, or are hard at work lobbying and donating to their friends in Congress in the hopes of legally changing the basic software and hardware into something they can work with.

We ask the court this question: Should a vocal and influential MINORITY of interests be allowed to change the basic technological foundation of the open Internet for their own purposes? Why should THEY get to lock it up against a host of personal exchanges in this way? The music industry will claim that music sales are being lost and that they could be much larger if the traffic was controlled and free exchange prevented. We only ask that they prove this, and we reasonably ask that nothing be changed until they CAN prove this, since a lot of us like the Internet exactly the way it is. This new technology is too important, too unprecedented, and too useful in so many non-infringing ways, to base fundamental changes to it on the theories of doom we hear coming from the music industry.

If free music on the net could actually kill or harm the music industry, that diminishment would ALREADY be greatly evident by now as it is estimated that there have been BILLIONS of free music downloads to date. But it's not at all evident yet. Music consumers are not buying less, they are collecting more! It's now easy to "try out" the totally unknown at no risk, all kinds of stuff which the public ordinarily would have neither the inclination nor the budget to buy otherwise, but which then inevitably results in the purchase of some of the many works discovered for free on the Net. The Internet is great free advertising for ALL music, but no one seems satisfied with that little miracle.

There is every indication that this is how music on the Net now interacts with the store bought variety. Independent musicians know that free music on the Net does not threaten music sales to any greater degree than it expands them. Every download does NOT represent a lost sale, and they certainly create a few new ones to boot at no cost. Some might be a little embarrassed about having such a cake and eating it too, but that is exactly what is happening now. Just like allowing the personal copying of movies did not kill theatrical showings (as Jack Valenti had predicted in the famous Betamax case), but rather expanded the interest in movies in all their paid forms as well, so does P2P's expansion of free music availability do the same for music sales.

While this technological history seems to suggest a pattern to us, we continue to philosophically question the total control by commercial interests over our entire public and private environment. The entertainment industry's ability to influence, lobby, and alter all possible venues of cultural expression in America into suitable "business models" has not necessarily been the best thing for our cultural development in all cases. This way of thinking (basically, the withholding of all cultural creations until tolls are paid) is new in human history. It completely disregards the balancing act intended by our nation's original copyright intent, and results from the ever growing power of an increasingly smaller number of players in the corporate music world.

The consolidation of the mainstream record industry into just 5 gigantic companies has resulted in a parallel musical universe in which monetary gain is the sole purpose and justification for all cultural activity, as well as becoming the quality definer for any and all cultural production. The culturally selfish assumption behind the major recording labels is that our arts are only to be consumed for a price and never shared freely unless they get their cut. But the peer-to-peer architecture of the Internet is this society's very first opportunity to counter this apparently unstoppable trend in the rest of our world with a true alternative - sharing. Attacking unforeseen alternatives like the Internet, which promotes universal self-direction and independent distribution, does much more to STIFLE creativity today than it does to encourage it. We contend that, amazing or not, this person to person digital sharing in a realm where supplies cannot be diminished does not and will not harm the off-line world of hard goods commerce. If technological history and today's reality are any guide, it will very likely enhance it.

The music and movie industries remain convinced that they can hand us all their unilateral decision about what the Net's architecture is going to be, that they have some kind of undisputed right and profit preserving mandate to CHANGE the Internet's operational nature for their own private purposes. This has led the music business into such historically unprecedented situations as lawsuits that treat their valued customers as potential criminals! As seen in the RIAA's recent lawsuit against Napster, this lawsuit (which made perfect business sense to this corporately funded lobbying group) was also an attack on the 25 million music fans who enjoyed using Napster. It was a public relations disaster for the music industry, and the resulting anger, alienation and loss of respect of the music loving public towards the big 5 record labels is something that the industry still seems to fail to grasp. These kinds of anti-consumer lawsuits are a pretty strange new business model!

For the majority of users, the Internet still represents a very new and unusual expression of public domain ethics and possible procedures, a place where cost and content are not necessarily bound together. It's a way of thinking which has been denied to us in all other forms of mass media, all of which succumbed to commercial domination and fully sponsored purposes long ago. The basic functionality of the Internet was beautifully and generously designed to promote and facilitate copying and spreading, and unless its basic nature is significantly altered, it will always be prone to do this well. The Internet's fundamental architecture was never designed or meant to accommodate business schemes and their commercial "needs," and the Net's miraculous natural ability to interconnect us WITHOUT a profit motive will only be diminished by those "needs" taking over that landscape. As paranoia grows among the corporate owners of culture and content, the Internet becomes all the more curiously fascinating to its vast majority of commercially unaffiliated users precisely because it just sits there, a profound enigma in the midst of a society so otherwise firmly entrenched in traditional capitalist formulas for success.

How can this commercially unworkable anomaly be accommodated? The legal, psychological, and societal shifts that these paradoxes of practicality may eventually produce among us reach far beyond the profitability of art to question the value of intellectual property ownership itself. All other previous mass mediums have been one-way in nature and perfectly suited to a passive, sponge-like absorption of its content and commercials. The Internet, on the other hand, still appears to be the only medium FOR the masses, a medium that invites and facilitates personal participation, active contribution, and individual exchange and interchange. Personal contribution rather than anonymous absorption is what is suggested by the technology from the user's point of view. And it does this without a profit-making center of control or executive offices making decisions about its future. The difference consists of who and what is really in charge, and who and what it's really all for.

The Net continues to immutably FORCE an unasked for and mind-boggling cultural revelation upon us: "The endless American Mall stops here. All proprietary withholding for tolls and per-unit sales can be routinely bypassed here. Now what will YOU make of it?"

Well, look at what we have made of it so far. As musicians, we welcome the spread and free exchange of our art using these digital transmission tools.

- NEGATIVLAND

www.negativland.com

Executed on this 21st day of January 2002.

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