One of the most interesting current cases of copyright infringement I encountered when contemplating this assignment (which, coincidentally, was the first case I saw when I typed “copyright infringement” into Google News) was the dispute between London-based dance label Ministry of Sound and commercial music streaming service Spotify. For the past twenty years, Ministry of Sound has made a significant amount of its money creating and distributing dance music compilation records featuring music they do not own, a process which they argue involves a lot of research and curatorial skill. Spotify, which makes money by providing its users with access to over 20 million songs and allows users to create playlists of these songs, is being sued by Ministry of Sound because several of its playlists mirror Ministry of Sound compilations, with the same exact songs in the same exact order. Ministry of Sound is demanding that Spotify remove the playlists and pay damages. What is at stake is whether or not the “selection and arrangement involved in putting [compilations] together” qualifies for copyright in the UK (The Guardian).
It is understandable that Ministry of Sound might believe that having their compilation albums copied on Spotify as playlists might harm their business structure, since people with access to Spotify are currently able to take advantage of Ministry of Sound’s “curatorial work” without having to pay them for it. This remains true, and the infringement remains damaging, however, only if Ministry of Sound decides to continue with its current business structure. As Lessig points out, although
“the ordinary and sensible rule for most goods is the “pay me this for that” model of the local convenience store, a second’s reflection reveals that there is a wide range of resources that we make available in a completely different way … Think of music on the radio,which you consume without paying anything … we organize access to these resources differently from the way we organize access to [other goods such as] chewing gum.”
Perhaps, as Lessig might suggest, Ministry of Sound is thinking too narrowly in terms of how to organize access to their compilations. Ministry of Sound wants to maintain the pre-internet status quo of access to their compilations being granted only through a purchase made by the consumer of the compilation album. Perhaps instead of attempting to maintain this status quo through a lawsuit, Ministry of Sound should consider alternate ways to organize access to their compilations through which they might still profit. The fact that a company like Spotify should not only exist but generate profits should serve as proof enough to Ministry of Sound that music companies can profit in ways that are different from the old process of forcing the consumer to directly pay for music. Even before the Internet made music so widely available that the entire music industry was forced to shift its practices, the way that radio companies could generate profits by playing songs “for free” and being paid by advertisers evinced this idea that money could be made by music companies in ways that were alternate to the idea of having the consumer pay directly for the music. Kant wrote that unenlightened men were burdened by the yoke of nonage, or the “the inability to use one’s own understanding without another’s guidance,” something that “is self-imposed if its cause lies not in lack of understanding but in indecision and lack of courage to use one’s own mind without another’s guidance.” In Kantian terms, Ministry of Sound ought to free itself of the yoke of the idea that the only way it can profit from its “curatorial abilities” is to sell compilations to consumers. If its abilities are so self-evidently valuable, perhaps it could make money through creating playlists for companies like Spotify, or working with Spotify in some other way. After all, the creators of the NOW That’s What I Call Music compilations have partnered with Spotify to make all of their compilations available as playlists, something which they are likely not doing at a loss of profits (BBC).
As the Internet has transformed the way that consumers have access to music, the music industry has had to change. As much as Ministry of Sound would like to be insulated from that change and continue to profit in the ways it did before that shift occurred, it would be better off finding ways to make its abilities profitable in the current situation than trying to stop the shift from occurring. Trying to stop that shift is improbable.
I have found it quite difficult to relate this case to Milton, since the case is attempting to determine whether or not compiling the creative works of other individuals constitutes intellectual property, whereas Milton seems more concerned with the fact that creative works not be censored. Milton does argue, however, that creative works should not be censored because censors were unlikely to understand the research and effort that went into a creative work. Speaking about the act of writing, he writes:
“…if in this the most consummat act of his fidelity and ripenesse, no years, no industry, no former proof of his abilities can bring him to that state of maturity, as not to be still mistrusted and suspected, unlesse he carry all his considerat diligence, all his midnight watchings, and expence of Palladian oyl, to the hasty view of an unleasur’d licencer…”
In other words, Milton believes that no one can understand the amount of work that went into the creative process of a certain work unless he or she observes the process from start to finish. Although no one is trying to censor Ministry of Music’s creative work of making compilations, I suppose Milton might side with Ministry of Music, since Spotify cannot truly know the creative effort it took Ministry of Music to create its compilations. It would therefore be unfair for Spotify to take advantage of Ministry of Music’s curatorial ability under the assumption that creating a compilation does not require the same amount of effort as another creative work and does not therefore warrant a copyright. In regards to this line of thinking, I agree that creating a compilation does require some sort of creative process which ideally should be protected as a form of intellectual property, but I believe it would be too impractical to attempt to prevent this type of intellectual property from being “stolen” in the face of the widespread access to music offered by the internet. Were creating a compilation deemed a type of intellectual property, to what extent it should be protected would almost immediately become an issue. Should then a playlist featuring the same songs as a compilation in a slightly different order violate the copyright? Should a person be unable to create a playlist with the same songs as an existing compilation? What if a person happens to create a playlist with the same songs as a compilation without realizing the compilation exists? Some of these events, which would likely violate the intellectual property of the compilation in some way, would be very difficult to defend against. It would be much simpler and more practical for Ministry of Music to evolve than to attempt to keep in place structures that have been removed with the inception of the internet.