Through a "Guest Comment" post on the Guardian website, I came across this post by Mark Mulligan on the Jupiter Research website, on the subject of "Why music can't be 'just free'." It seems to be quite fundamentally wrong to me so I'm going to explain why I think it's wrong. (Although I'm somewhat conscious that this is my second post in a row that's attacking someone else's post and rehashing their titles with a "not" in them, I don't plan to make this a trend.)

I'm not saying here that all music can— or should— be free. My own idea of "free" is about freedom, which is just as much about the freedom of the artist as the rights of the consumer. (In the same way that I wouldn't want to stand in the way of someone who wanted to build a 21st century business by selling oil lamps. It just wouldn't stop be from using electric lightbulbs...)

But the idea that music can't be "just free" is one I fundamentally disagree with.

Mulligan's post is mainly a reaction to the ongoing debate surrounding a legal case that's going on in France at the moment, where the makers of some software which is being used to share copyrighted materials are under attack;

A couple of arguments are being leveled at the SPPF. The first that these applications aren’t designed for copyright infringement. It’s not the fault of the developers that they are being used as such. This argument of course has been since the original Napster trial. I’m sorry, but it just doesn’t wash. However much there is legitimate usage, the vast majority of usage is not legitimate. All the developers need to do is support their claims off innocence by embedding filtering mechanisms into their apps. If they counter claim that this would restrict the liberty of their users, then they can’t any longer argue that they don’t support illegitimate usage of their technology.

I'm not going to go into the argument about the difference between what a tool is made for and what it's used for; it's been done to death. Until we can agree that, for example, kitchen knives shouldn't be available to the public because so many stabbings are done with kitchen knives, I think it's a dead end. But the "all they need to do…" line makes it sound so easy; as though breaching copyright could just be solved as simply as flicking a switch... so how could such a filtering system work?

There are basically two ways of applying such a filter; whitelist and blacklist filters. A whiltelist filter means that only "approved" files are let through; meaning whoever controls the filter controls what can be shared. So let's say, for arguments sake, Apple controls the filter. Are HMV going to want Apple controlling what music they can and can't distribute over their competitive network? (While also having nobody controlling what music they can distribute themselves?) Is any single gatekeeper going to be allowed control access to all music, text, video, software and anything else that can be reduced to a series of bits and bytes- on a global level? I highly doubt it. So I can't see how a whitelist filter could work.

If the filter is made and I want to share a file I personally make (say, I've just recorded a demo that I want to share with the rest of my band- or a finished song that I want the whole world to listen to), I don't want to go through the process of asking permission from an authority before I can share it. (After all, I don't need permission to share it via FTP, email, MSN, CD, USB-stick etc.) I'd simply find another way to share it. If I can find a way to share my own information that I'm allowed to share, then I'll be able to find a way to share information that I'm not allowed to share.

The alternative method is a "blacklist" filter; the kind that most online security uses. But until there is a database of every detail of every piece of information that's copyrighted (an impossible task), that wouldn't work either. If the means of control relies on obscurity; sharing under a different name to get around keyword filters, encrypting media streams so a decryption key is needed to play it back (a key that could be posted anywhere on the web) and so on, then a single problem becomes a multitude of problems, and the root problem isn't solved. The technology can still be used to share copyrighted material.

I'd love to hear a suggestion of how a filtering system could work effectively, but as far as I can see, it's an impossible task. It's like stopping cars from travelling faster than walking speed to stop road accidents, or stopping knives from having sharp edges; the solution to the problem involves crippling the tool so that it can't perform the task that it's made for.

The problem isn't with the tools- it's with the people who are using them. You can't solve a purely social problem with a purely technological solution; society will develop a technology to sidestep the new problem that's been created. It's like pushing down the bubbles under wallpaper; they don't go away. They just move around.

Second point;

Music cannot just be ‘for free’ any more than cars or houses can ‘just be for free’. If people aren’t paid they don’t make the product. Sure music will still exist, but you’ll swap nicely programmed download stores and well stocked high street stores for buskers and millions upon millions of artist pages, all clamouring for your attention. Perhaps that sounds appealing?

Just imagine- instead of the promotion/advertising budget and how it's spent determining which artists actually get my attention, it's decided by something else? Like, say, word of mouth recommendations, from trusted sources (professional reviewers?), or some other sort of system that's mainly driven by the quality of the music? It could be a world where female musicians don't have to be magazine centrefolds or beauty queens in order to get a record deal and get the chance to make a living from their music...

But idealistic as it is, that's beside the point; cars aren't free because they cost money to make; they involve raw materials that have to be paid for. Houses aren't free because they cost money to make; they involve raw materials.

Making music— just like writing this post you're reading— doesn't cost money to make. It takes time and effort, but it doesn't cost money to make it. It takes the time to learn to play an instrument, to write/learn a song, and to actually put it down onto a recording, but the majority of that work comes before the money- well before, and with no guarantee (even in a utopian world where nobody listens to music they don't pay for) that the check will ever arrive.

This is where the absurdity of the "music can't be free" idea is clearest; when thinking of the artist who is trying to get into a position where they can sell their music. Should artists be charging for their music before they have a recording contract? Would record labels welcome the opportunity to be paying for the opportunity to listen to new artists' music?

Of course not. If an artist is trying to get attention, they don't want any barriers between their work and an audience. For the musician without a record deal, music can't be anything but free.

(There's also the qualitative argument that music written as a form of artistic expression is better than music that's written to appeal to the broadest, widest paying audience, but the world of actual music is conspicuous by it's absence from Mulligan's argument...)

But if the "product" is only being made so that people can get paid, what about the people who haven't been inducted into the upper classes of the music world; the people who don't have record deals? Should they be borrowing money (from wealthy parents, banks, or record company advances) to support themselves while they chase the dream of becoming a millionaire rock and roll star— a dream that few will actually achieve?

The problem is, most of them would sound a fraction as good as they would if they’d been able to give up their day jobs and been given proper equipment, studio time, mentoring and artist development support. And even those that would still manage to sound ok, would struggle to find their way to your PC or mobile screen as they wouldn’t have any marketing support to help them get there.

So what happens to those artists who were "able to give up their day jobs and been given proper equipment, studio time, mentoring and artist development support", but didn't become commercial successes and sell enough records to recoup their record company advances. Who paid for their equipment, studio time and promotion? Who was responsible for paying back their record company advances?

The fact is, people make money from music in a number of different ways; sure, there's huge amounts of money being made from selling copies of recorded music, but it's by no means the only way of making money from music.

Every time a record is played on the radio, appears on an advert, in a film soundtrack or a TV programme, the artist receives (or should receive) royalty payments. That's not a copyright issue; that's a publishing issue, which is completely separate from the issue of filesharing and whether music should be free. (Although it does complicate the issue somewhat; where it's acceptable to listen to music for free when it's broadcast on the radio, or streamed over the internet, but not when it's been downloaded from a different source.)

But that's just looking at recorded music- there's also money to be made through performing music; at private parties, public concerts, recording performances of songs specially for TV or radio shows and selling merchandise are all possible ways of making money from music. Then there's writing music- commissioned pieces for films, TV, adverts, computer games; anywhere that music can appear is a possible place for an artist to make money.

I think you could make it perfectly legal for consumers to copy and download all the CDs they like without damaging any of those revenue streams. (After all, the world of music existed in a perfectly healthy state before Edison invented a way to record it.)

But the best example for how music can be free is a case study. No, I'm not going to go over the same old "name your price" Radiohead download, the sponsored album giveaways (Prince with the Mail on Sunday, the Charlatans with XFM), or the creative commons Nine Inch Nails releases (where plenty of people chose to pay for a product that was available for free.) Yes, all of them involved artists making money by giving away their music for free, but all of those involved high profile bands who had already become successful with record company backing; it's impossible to judge how successful they would have been without the start that they had.

A few weeks ago, I went to see Jonathan Coulton play in London. Chances are pretty good that you don't know who he is- with no major label record deal (and the publicity and promotion that comes with it), you could argue there's no good reason that you would. I suppose his main "claim to fame" is that he wrote the song played at the end of the computer game "Portal." (An aside; if you haven't played it and you have any interest at all in computer games or new ways of telling a story, I strongly recommend that you play it. A great song and a great game. But outside of the context of the game, the song doesn't really make much sense.)

He's also written a few songs that have become "Internet famous", partly because of the nerdy nature of some of the songs, and partly because of the way he's distributed them. His "thing a week" project that ran from Septmeber 2005 to September 2006 got him some attention, where he was writing and recording a new song every week for a year, and releasing them as a weekly podcast. Naturally, the results were somewhat variable, but as a result there were some songs that were released that probably wouldn't either have been written, recorded or received any attention if they had been put together in any other way. (You can still get them on your favourite podcasting service- search for "Jonathan Coulton" in iTunes and you should find his Thing a Week project, as well as the Jonathan Coulton project, where other people make videos for his songs.)

His music is released under a Creative Commons licence, which means that anyone is free to copy, remix or generally play around with the music, so long as the original artist is credited. In other words, his music is free.

Yet he pretty much filled the Shepherds Bush Empire (or at least, it looked full up from my seat in the balcony.) That's not a small venue—although it was all seated for his gig. That's a lot of people who paid to see him perform- a lot of whom also paid to buy merchandising. They got the music for free (at least at first; some of them will have chosen to pay for the music they downloaded), and then gave their money to him through a number of different channels. Yet there was no record company there to take a cut of the money he made, and spend it on promotion (either promoting him or other artists.)

So the reason that music can't be "all free" has nothing to do with money; if that argument made sense then we'd all be paying every time we wanted to contact a friend or search for something on the internet. I wouldn't be listening to Jonathan Coulton right now, as I type this post in a free web browser, connecting me to a Linux-based server, running free software to host my blog. (I do pay for the server; effectively renting the hardware and paying for support, but I could just as well be doing it entirely for free on something like Wordpress.com or Blogger. In other words— just like the Jonathan Coulton songs I paid for— I choose to pay for something I could easily get for free.)

The reason music can't be "all free" is because not everyone wants to (or is even allowed to) release their music for free. Artists under record label contracts, or artists who are worried about keeping control of their music, or artists who believe in that business/distribution model rely on people paying for the music they want to listen to. But the fact is, some of it's for free. Music on the radio (where advertisers pay the radio station, who then pay the artists) is free to listen to. Some people are building a nice reputation for themselves, or exploiting a reputation that they've already built, and making money by giving away their music, and there's no doubt that new ways of making money by giving things away will appear.

To close, here's a video of Jonathan Coulton playing the London gig I went to. If you prefer, you can go to his website and give the studio version a listen. Of course, if you want to, you can buy it there as well.