By Emma Silvers
By Gary Moskowitz
By Alee Karim
By Ian S. Port
By Ian S. Port
By Derek Opperman
By Emma Silvers
By Alee Karim
"The market has determined the value of music on the Internet, and that value is nothing." That's one of my favorite quotes from the full day of panel discussions and lectures I had the pleasure of sitting in on at the Music Law Summit West held at Hastings College last Wednesday. The summit was co-sponsored by the oh-so-idealistically named Future of Music Coalition, as well as the Noise Pop festival, and was attended primarily by lawyers, law students, and industry types, many of whom were packing heat – i.e., sleek Apple laptops – which suggested to me that they were at least a little hipper than your average suit. As it turns out, they were a lot hipper: One said, "There's no way [the record industry] can securitize its assets. That's a sick, dysfunctional fantasy. It's just impossible."
Both of the above declarations were made during the day's first panel, "Peer to Peer File Sharing: Can it be stopped? Should it?," by panelist Sandy Pearlman, a music producer (Blue Öyster Cult, the Clash), media mogul, and fan of the anarchist's all-black look. Most of us in the audience liked Pearlman. When he made a joke, we laughed. When he went off on a $5-word-filled rant, we tried to follow. When he adamantly suggested that the way to pay the artists who make the music we love is through a 1 percent sales tax on hardware like iPods and CD burners, we were like, "Huh? That sounds complicated, Sandy. Can we get back to making fun of the guy from the RIAA?" And so we did.
Ultimately, though, Pearlman set the tone for the whole day with this remark: "The music industry is a collapsing model."
God, it feels good to say that.
Of course, not everyone agreed. The Recording Industry Association of America's VP of government relations, David Sutphen – who deserves credit for just showing up to play the role of punching bag – argued that the five major labels (soon to be three!) are a vital part of discovering, developing, and ultimately delivering the art of musicians to a wide audience. He compared the labels to a benevolent venture capitalist willing to make an investment in a company he believes in, in exchange for an expected profit somewhere down the line. Sounds simple enough. Then Fred Von Lohmann, a senior attorney for the Electronic Frontier Foundation, pointed out the absurdity of that claim, noting that a VC is a small group, sometimes only one guy, investing in a company that will grow, hire new employees, and shed its dependence on that seed money. A major label, on the other hand, is literally thousands of people, and its antediluvian infrastructure is designed to yoke a small group of artists ad infinitum. That's why Prince had to change his name.
Meanwhile, Madigan Shive, of the fiery folk group Bonfire Madigan, insisted all the while that she's been able to make a comfortable living for more than a decade participating in a small, sustainable independent community – the one that's grown up around her music and performances – to which she sells her wares directly. In a room full of lawyers and executives, Shive's rhetoric of sharing and her pleas to view free access to music as a basic human right seemed kind of hippie-ish. Nevertheless, when she said, "Anything that gets in the way of that," implying the major labels, "is not helpful to artists," she received a rousing round of applause. And this, by the way, was just the first panel.
The music industry is a collapsing model. Ahhhhh.
I think it's safe to say that nearly all of us gathered at the conference believed this, and we are not alone. You see examples of discontent all over, sometimes in unlikely places. Like the music of Korn. That's right, Korn, that multimegaplatinum-selling rap-metal act whose latest (crappy) single is the ironically titled "Y'all Want a Single," the video for which features images of the band ravaging a chain record store intercut with screens of text saying things like, "Last year the big 5 [labels] together sold $20 million worth of music. 96% of artists on a major record label do not make a profit."
Then there's the case, referenced throughout the day, of underground hip hop producer Danger Mouse, aka Brian Burton, and his recent creation, The Grey Album, for which Burton relied entirely on samples from the Beatles' self-titled full-length, commonly known as "The White Album," to create an alternate version of Jay-Z's The Black Album. While the record was never officially released – Burton didn't secure the rights to use the samples (because, exorbitant costs aside, Beatles samples are not for sale) – it received immense, widespread critical acclaim, including a sizable article in Rolling Stone touting its brilliance. Burton had created something amazing, a piece of music that synthesized black and white, old and new, the rapper who calls himself Hova (as in "Jehovah") and the band that was bigger than Jesus.
Sure it's a gimmick, but it's a pretty fucking good one – and people wanted to hear it. Only problem was, they couldn't. EMI, which owns the Beatles' copyrights, wouldn't let them, going after file-sharers left and right, even people selling bootlegs of the CD on eBay (for upward of $80). What a shame. All of this led to last week's "Grey Tuesday," when, as reported by the New York Times on the day of the summit, "More than 300 Web sites and blogs staged a 24-hour online protest yesterday over a record company's efforts to stop them from offering downloadable copies of 'The Grey Album.'" Thousands of copies of the work were given away in willful defiance.
Say it with me: The music industry is a collapsing model.
Given that the Music Law Summit was co-sponsored by the Future of Music Coalition, one assumes we got a glimpse at what that future looks like, right? Sort of. As evidenced by the dozens upon dozens of issues raised by the event's various panelists – from romantic notions of a "celestial jukebox" to practical ones like the future of contracts – that picture is as clear as mud. Like, really dirty mud. Which is to say that no one has any idea. There are, however, some signposts.
By now we all know about the success story that is iTunes and the future that that success points to: One day record stores like Amoeba will be more like antique shops run by crazy old people wearing green visors to whom you will pay 600 microcredits for a flat plastic doughnut that says "Linkin Park" on it for purely nostalgic reasons. Yes, it's pretty clear that digital downloading is where it's headed. But where does that leave the major labels? Will their bloated contracts, exploitative tactics, and homogeneous tastes be shut out of this future?
Not if the RIAA has its way. The one thing not up for debate is that the RIAA gets paid lots and lots of money by the major labels to saddle up next to members of Congress, the Senate, and the FCC – you know, those Beltway hipsters who write the laws that determine cash flow in intellectual-property industries like film and music. Most of those laws were written throughout the last century, pre-Internet, and they've evolved over the years to favor the labels, not the artists whose "intellectual property" they were designed to protect. And of course, artists and indie labels don't have an interest group like this on their side fighting back, because – surprise! – they can't afford it. This is not likely to change any time soon.
And what about the cult of the single, which the five wise men of Korn and so many others object to? Won't services like iTunes – the core belief of which could be characterized as "one song = $1" – only reinforce that ethos? And, wait a second, I forget: Does legal downloading net artists more money than conventional CD sales? Is it more fair, so to speak? Again, not if the RIAA can impose the antiquated payment structures it seeks to create in those emerging markets.
Napster created the explosion: "This shit doesn't have to cost so much," we all learned in unison. "Actually, it can be free." And what a great thing that was for music, because suddenly everyone was devouring it again and realizing that there's all this great stuff out there that the conventional distribution channels aren't telling you about. And you know what? You can even download it and remix it if you want, and share that remix with your friends, and – ooooh, the ideas we'll have, the fun, the passion we'll inject into this simple, simple concept: Music. Sharing. Communing. Sounds fruity and all, but that's how it was for a while.
The RIAA wants us to view that revolution as a colossal fuck-up, something that shouldn't have happened. It wants to convince us, the consumers, that we have sinned in downloading those songs for free, because their creators didn't get paid. But the fact is, those creators don't really get paid anyway, at least not in a fair, civilized way.
Pearlman's idea for skimming a little money off each iPod sale is a step in the right direction. We could, over time, devise a system by which musicians get the compensation they deserve; it's a matter of dismantling the old system and building a new and more equitable one – easier said than done, to be sure. But this revolution has opened the doors for us to do so. The RIAA wants to close those doors. We cannot let it.
Lawrence Lessig, author, Stanford law professor, and founder of Creative Commons (www.creativecommons.org) – if you're an artist, go there – was the summit's closing speaker. Lessig started off his speech with a fun fact about the beginnings of photography, when Louis Daguerre and George Eastman were engineering this strange new notion of "capturing" an image. When the technology was in its infancy, Congress actually debated whether it was legal for someone to "take" someone else's picture, whether the subject "owned" his likeness and therefore had the right to sell that likeness. Luckily for us, Congress realized it was fucking crazy to debate such a thing and decided not to pass laws restricting what you could and could not photograph. Before long, everyone was taking pictures. And soon industries sprang up around the selling of cameras, photo albums, nudie magazines, etc. In giving more freedom to more people, Congress promoted excitement for a form of creative expression, and eventually the money followed. A similar kind of freedom is what we – as both artists and consumers – must insist on as we move toward the future of music.