ASCAP Songwriter Testifies on Capitol Hill in Favor of Empowering Copyright Owners to Fight Illegal File-Swapping

On September 26, 2002, hearings were held on congressional bill H.R. 5211, (also known as the P2P Piracy Prevention Act) which would allow copyright owners to manipulate systems that engage in illicit copying and dissemination of protected creative works. The bill would legalize copyright owners' use of such self-protective measures as interdiction, file blocking and spoofing as a means of combating peer to peer services that spread illegal copies. ASCAP member Phil Galdston delivered testimony from a songwriter's perspective in support of the passage of the bill before the Congressional Subcommittee on Courts, the Internet, and Intellectual Property. Though Mr. Galdston was not speaking on behalf of ASCAP, his transcribed statement should be of interest to all ASCAP members.

INTRODUCTION AND BRIEF BIOGRAPHICAL INFORMATION
Mr. Chairman, Mr. Berman, and members of the Committee: My name is Phil Galdston, and I am grateful for this opportunity to share some of my thoughts on musical intellectual property and the threat posed to the creators and owners of it. Just as importantly, I thank you for your willingness to examine issues crucial not only to songwriters and music publishers, but to music lovers across the nation and around the world.

As the biographical information I have provided will attest, I am a composer, lyricist, and music publisher. I am not a recording artist (although once upon a time I was one). I am what is known as a pure songwriter - one who makes a living and supports his family by writing songs and submitting them to recording artists, producers, managers, labels, and anyone else who may help me get them recorded and exposed to the public.

For the record, although I do not speak on their behalf, you also should know that I am a long-time writer and publisher member of ASCAP (the American Society of Composers, Authors and Publishers) and a National Trustee and President of the New York Chapter of the National Academy of Recording Arts and Sciences, the group that bestows the GRAMMY© Awards.

Over the course of my career, I have been fortunate enough to score hits on most of the major charts. Among my best known songs are: "Save the Best For Last" and "The Sweetest Days," which are among seven of my compositions recorded by Vanessa Williams; "Fly" and "The Last To Know," which are among five recorded by Celine Dion; "One Voice," which was recorded by Brandy, and was UNICEF's theme song in its 50th anniversary year; "World Without Love," which was a top ten record for the late country star, Eddie Rabbitt; and "It's Not Over (Til It's Over)," which was a top ten pop and rock hit for the rock band, Starship. My songs have appeared on more than 60 million records around the world, and I have been honored with a number of prestigious awards, including a Grammy nomination as Song of the Year and ASCAP's Song of the Year award.

The hits and the awards aside, I am a songwriter and a small-business owner. My greatest achievement, and my greatest asset, is the catalogue of over 600 songs I have amassed in 37 years of writing. I am here today because that asset - my personal property - is under attack and is the subject of outright theft by those who obtain it without my permission and without compensating me. Please make no mistake about the situation songwriters face: our livelihoods are seriously and negatively impacted by unauthorized downloading of our work through peer-to-peer networks.

REAL PROPERTY vs. INTELLECTUAL PROPERTY
It would be nice to say that the business community in which we operate has developed a solution to this problem. But that is not the case, and, what's more, it may be extremely difficult to achieve in the short run. While there is little doubt in my mind that the solution to the crisis brought on by unauthorized downloading will be multi-faceted and will require a combination of effective digital rights management technologies, better online access to digital copyrighted material, better enforcement of copyright laws, and new technologies to aid in enforcement, at least part of the solution requires that our elected representatives help protect us.

To most people, the system compensating songwriters for the use of their copyrighted work is murky at best. I've noticed that most people who write or speak about it try to draw an analogy between intellectual property and so-called "real property." ("Downloading a song without the copyright owner's permission is like stealing a bicycle," and the like.) I've concluded that an appropriate analogy probably does not exist. And that tells me that what we songwriters create is rather unique.

Real property is comprised of raw materials that are produced by someone else. You just can't say that about songs. If I don't dream it up from my heart and my head, the song will not exist. The question most frequently asked of songwriters is "which comes first, the words or the music?" The answer is neither. What comes first is the inspiration, in all its wondrous variety of forms, none of which, or their final expression can be defined as "real property." Nonetheless, as you well know, it is property.

RIGHTS TO A SONG vs. RIGHTS TO THE RECORDING OF A SONG
To understand the position in which unauthorized downloading places songwriters, it is crucial to realize that, except in rather rare circumstances, we do not sell our songs. We license them to record companies, and other outlets, in return for royalties when and if they sell or are played in broadcast media. (For the purposes of this statement, I will use sales - or mechanical - royalties as my example. But the principles I will discuss apply to both mechanical and performance royalties.)

There is a given in the music community: "It all starts with the song." That is not only true of a great record or live performance, it's true of the rights that flow from a song's creation. And those underlying rights are separate and distinct from the rights attached to a recording of it. It is not just semantically incorrect to say that people download "record companies' songs." It is factually incorrect, as well. The record companies don't own the songs; they only own their recordings of those songs, not the songs. Songwriters - individual creators - own the songs.

All the angry talk about the major record companies, and their failings ("Why should I pay $18.00 for a CD with only one good song on it?" and the like) ignores this essential fact of ownership. A person who downloads a record of a song of mine without my permission may be trying to punish what they believe are big, bad record companies and greedy, selfish artists. But they're also punishing me, the person in the creative process who can least afford to be punished.

If anything, the current system already punishes me. When I license a song to a record company, I receive nothing - no fee, no advance, no payment of any kind. My compensation in that situation depends entirely on the success of the recording. If I am compensated, the already low rate is set by statute.

And frequently,  labels demand that songwriters accept a three-quarter rate; six cents per copy sold instead of the current statutory rate of eight cents. (This is another situation I hope Congress will look into). Please note that, while I may be paid less, I am never paid more. In fact, songwriters are the only people I know who are subject to a maximum wage.

WHAT SONGWRITERS ARE LOSING
Although the law gurantees me compensation for every reproduction of my songs, including digital downloads, I do not receive anything for unauthorized downloads made through P2P networks, like KaZaA, Morpheus, or Bear Share. If, as the most recent studies suggest, there are over three billion unauthorized downloads per month on all known peer-to-peer servers, well, you can do the math and see what songwriters are losing.

Therefore, while songwriters can see the value of the internet as a new and potentially vast source of revenue and exposure, while we want music internet services, including peer-to-peer services, to succeed, we must protect our right to be compensated for the use of our work. Every time someone downloads a song of mine without authorization, I am losing all that follows from it: the ability to support my family, the capital needed to continue to re-invest in my business, and the economic incentive to continue to create.

THE RIGHT TO GRANT OR DENY PERMISSION
In a peer-to-peer download, songwriters are losing something else: the right to grant or deny permission for that type of use. Of course, this is an essential aspect of ownership of any property. But in this case, it's a point illustrative of the complexity of the interlocking benefits of the use of songs. For example, although a good number of artists write the songs they record, their rights as recording artists and any artists royalties they may receive from the success of their recordings are entirely separate and distinct from those they enjoy as songwriters. By extension, my rights as a songwriter and any financial gain I may derive from the success of a recording made of it are distinct and separate from those of the artists who records my songs.

There are artists, labels, and artist-songwriters who may very well benefit from permitting audience members to download their work for free. Unlike pure songwriters, artists and labels have alternate sources of income and long-range goals to promote. Celine Dion or Brandy or Beyoncé Knowles may profit more from the sales of concert tickets or t-shirts than they lose from a free download promoting their merchandise. The artist and/or label may decide that it is more profitable to offer a free download in return for, say, an audience member's e-mail address. That trade provides them with an opportunity to market other products and services. Simply put, that is their choice; it should not be imposed on me. (By the way, I haven't seen a lot of "PHIL GALDSTON, PURE SONGWRITER" t-shirts for sale.)

SONGWRITERS ARE BEING PUNISHED FOR OUR SUCCESS
It is sad to me that we songwriters are being punished for our success. The fact that it is difficult to go anywhere in "the civilized world" without constantly hearing songs - the vast majority of them written by American songwriters - is tribute to the immense popularity of our work. Be it a store, a mall, a movie theater, a living room with a TV on, a dorm room with a computer, a restaurant with a radio playing, or even the much-maligned dentist's office or elevator, the soundtrack to our lives is a stream of songs. And I imagine that, for many, this ubiquity, born of popularity, is the source of the misguided idea that, because music is in the air, it should or must be free. On the contrary, music is only in the air because my colleagues and I, through inspiration and hard work, have put it there.

All of this is about the basic principles of private property - principles that I have to believe most of those promoting or defending unauthorized peer-to-peer downloads would defend in any other situation. If all those offering illegal downloads would put as much effort into working with us (or, at least, obeying the law), we'd all have a system that was fair, legal, and entertaining.

HOW CONGRESS CAN HELP
What can Congress do to help copyright owners coping with the damage and the continued threat from unauthorized downloads? I think the answer is simple and sensible: help us help ourselves.

We're probably most similar to the owners of satellites and cable systems, who face no liability when they use electronic countermeasures to stop the pirating of their signals and programming. However, at this point, due to the wide range of many anti-hacking laws, our legal ability to prevent the theft of our property through peer-to-peer systems is inhibited by a high degree of liability. The Berman-Coble Bill, as I read it, would help stop unauthorized downloads by granting us limited, carefully circumscribed protection from potential liability for engaging in self-defense. In my opinion, this piece of legislation - even understanding that it may be possible to improve it - is a good first step.

I know that you can help us. I hope you are willing to do so. This is about much more than just compensation or permission; this is about the health of music. For, who will be drawn to a life creating music, if making music cannot provide a livelihood? This also is about respecting each other's property. My wife and I have taught our children that it is wrong to steal. Such unethical or immoral behavior, we instruct them, is never acceptable. And yet, as a society, we are turning a blind eye to the theft of songs from the people who own them.

Finally, music, along with our other powerful cultural expressions, is one of this country's leading exports and greatest ambassadors. If we turn our back on those who create it, what will we be saying to our composers and lyricists? To our children? What will we be saying to the rest of the world?

Thank you.