August 1, 2002
Quite frankly, when I spent three months researching and writing The Internet Debacle, I wasn't planning to become part of a "cause". I assumed that the 35,000 subscribers of Performing Songwriter Magazine might read it, and a few might email me about it. I had no idea that a scant month later, the article would be posted on over 1,000 sites, translated into nine languages, and have been featured on the BBC.
In the past twenty days I've received over 2,200 emails from unique senders. I've answered every one myself, getting an education I never intended to get in the process. I've corresponded with lawyers, high schoolers, state representatives, executives, and hackers. And I've felt out of my depth for a good portion of it.
I am in no way qualified to answer most of the questions I received, though I did my best, or referred them to someone else for discussion. The issues here are much, much bigger than I can encompass. I only wrote about downloading, record companies, and music consumers; within a few days, I found myself trying to answer questions like "Who owns the culture?" for myself. Length of copyright, fair use on the web, how libraries are being affected - these are all things I hadn't given much thought to before.
When I began researching the original article, I was undecided, but the more I researched, the more I reached the conclusions stated in the Debacle article. I've had only a few weeks since that article was published, and I've been on the road the entire time, so I haven't had the opportunity to research most of these questions. I want to thank Jim Burger and other attorneys and fans who kindly sent me articles and court cases to read off-line, while I was sitting in the car en route to the next city.
Do I still believe downloading is not harming the music industry? Yes, absolutely. Do I think consumers, once the industry starts making product they want to buy, will still buy even though they can download? Yes. Water is free, but a lot of us drink bottled water because it tastes better. You can get coffee at the office, but you're likely to go to Starbucks or the local espresso place, because it tastes better. When record companies start making CD's that offer consumers a reason to buy them, as illustrated by Kevin's email at the end of this article, we will buy them. The songs may be free on line, but the CD's will taste better.
II. My conclusions thus far:
"So why are the record labels taking such a hard line? My guess is that it's all about protecting their internet-challenged business model. Their profit comes from blockbuster artists. If the industry moved to a more varied ecology, independent labels and artists would thrive - to the detriment of the labels… The smoking gun comes from testimony of an RIAA-backed economist who told the government fee panel that a dramatic shakeout in Webcasting is 'inevitable and desirable because it will bring about market consolidation'." ("Labels to Net Radio: Die Now", Steven Levy in Newsweek, July 15, 2002.)
There are, as I see it, three operative issues that explain the entertainment industry's heavy-handed response to the concept of downloading music from the Internet:
1. Control. The music industry is no different from any other huge corporation, be it Mobil Oil or the Catholic church. When faced with a new technology or a new product that will revolutionize their business, their response is predictable:
a. Destroy it. And if they cannot,
b. Control it. And if they cannot,
c. Control the consumer who wishes to use it, and the legislators and laws that are supposed to protect that consumer.
This is not unique to the entertainment industry. This mind-set is part of the fabric of our daily lives. Movie companies sued over VCR manufacturing and blank video sales, with Jack Valenti (Motion Picture Association of America chairman) testifying to Congress that the VCR is to the movie industry what the Boston Strangler is to a woman alone at night - and yet, video sales now account for more industry profit than movies themselves. When Semelweiss discovered that washing your hands before attending a woman in childbirth eliminated "childbed fever", at a time when over 50% of women giving birth in hospitals died of it, he was ridiculed by his peers, who refused to do it. No entrenched model has ever embraced a new technology (or idea) without suffering the attendant death throes.
2. Ennui. The industry is still operating under laws and concepts developed during the 1930's and 1940's, before cassettes, before boom boxes, before MP3 and file-sharing and the Internet. It's far easier to insist that all new technologies be judged under old laws, than to craft new laws that embrace all existing technologies. It's much easier to find a scapegoat, than to examine your own practices. As they say, "You can't get fired for saying no."
3. The American Dream. The promises all of us are made, tacitly or otherwise, throughout our lives as Americans. The dream we inherit as each successive generation enters grade school - that we will be freer than our grandparents, more successful than our parents, and build a better world for our own children. The promises made by our textbooks, our presidents, and our culture, throughout the course of our childhoods: Fair pay for a day's work, and the right to strike. The right to leave a job that doesn't satisfy, or is abusive. Freedom from indentured servitude. The premise that every citizen is allowed a vote, and no one will ever be called "slave" again. The promise that libraries and basic education in this country are free, and will stay so. These are not ideas I came up with on the spur of the moment; this is what we're taught, by the culture we grow up in. And of everything we are taught, one issue is always paramount - in America, it is the people who rule. It is the people who determine our government. We elect our legislators, so they will pass laws designed for us. We elect and pay the thousands of judges, policemen, civil servants who implement the laws we elect our officials to pass.
It is the promise that our government supports the will of the people, and not the will of big business, that makes this issue so damning - and at the same time, so hope-inspiring.
When Disney are permitted to threaten suit against two clowns who dare to make mice out of three balloons and call them "Mickey", the people are not a part of it. When Senator Hollings accepts hundreds of thousands of dollars in campaign contributions from entertainment conglomerates, then pretends money has nothing to do with his stance on downloading as he calls his own constituents "thieves", the people are not involved. When Representatives Berman and Coble introduce a bill allowing film studios and record companies to "disable, block or otherwise impair" your computer if they merely suspect you of file-trading, by inserting viruses and worms into your hard drive, it is the people who are imperiled. And when the CEO of RIAA commends this bill as an "innovative approach to combating the serious problem of Internet piracy," rather than admitting that it signifies a giant corporate step into a wasteland even our government security agencies dare not enter unscathed, the people are not represented. (Hilary Rosen, in a statement quoted by Farhad Manjoo, Salon.com June 2002) *
III. A hopeful
thought
"If classroom copying is sharply curtailed, if we give someone a
software patent over basic functions, at some point the public domain will
be so diminished that future creators will be prevented from creating
because they won't be able to afford the raw materials they need. An
intellectual property system has to insure that the fertile public domain
is not converted into a fallow landscape of walled private plots." {James Boyle in the New York Times, March 31, 1996.)
I said that the research and information I've received over the past three
weeks has made me hopeful, and I meant it. Because I know that although
RIAA and their supporting companies can afford to spend 55 million dollars
a year lobbying Congress and in the courts, they cannot afford to alienate
every music buyer and artist out there. At that point, there will be a
general strike, make no mistake. Just one week of people refusing to play
the radio, buy product, or support our industry in any way, would flex
muscles they have no idea are out there.
And I know that although businesses can spend unlimited dollars on
campaign funding, only the people can elect a government. I believe
that to a politician, no amount of lobbying money is worth the price of
being voted out of office.
That, my friends, is why I have hope. Because I know that in America,
votes count. Because I know that if enough people understand this issue,
and vote accordingly, right will win. Legislation will be enacted that
takes the will of the people into consideration, and favors their right to
learn over Disney's right to control. Internet radio, currently in peril,
will go offshore and out of the country if necessary, so audiences can
hear thousands of songs instead of a narrow playlist. The RIAA will become
a small footnote in the pages of Internet history, and the people will
have triumphed - again.
A modest proposal
for an experiment that might lead to a solution:
"The record companies created Napster by leaving a
void for Napster to fill."
(Jon Hart and Jim Burger, Wall Street
Journal [WSJ.com] April 2, 2001)
1. All the record companies get together and build a single giant
website, with everything in their catalogues that's currently out of print
available on it, and agree to experiment for one year.
This could be the experiment that settles the entire downloading question
once and for all, with no danger to any of the parties involved. By using
only out of print catalogue, record companies, songwriters, singers won't
be losing money; the catalogue is just sitting in storage vaults right
now. And fans can have the opportunity to put their money where their
mouths are; if most people really are willing to pay a reasonable
price for downloaded music, traffic on this site should be excellent. If
most people really are downloading from sites like Napster because there's
so much material unavailable in stores, traffic on this site should be
unbelievably good.
2. The site offers only downloads in this part of the
experiment.
Since all the items are unavailable on CD, there's no need to invest time
and money linking to sites (or building record company sites) where
consumers can buy them on a CD. This will also ensure that the experiment
stays pure, and deals with only downloading. It would also preclude
artists like myself from offering downloads of material available on CD's,
skewing the results.
3. Here's where the difficult part comes in. All the record companies
agree that, for the sake of the experiment, and because these items are
currently dead in the water anyway, they're going to charge a
more-than-reasonable price for each download.
By "reasonable" I'm not talking $1.50 per song; that's usurious
when you can purchase a brand-new 17-song CD for a high price of $16.99,
and a low price of $12.99. I mean something in the order of a quarter
per song. I read a report recently showing that in the heyday of
Napster, if record companies had agreed to charge just a nickel a
download, they would have been splitting $500,000 a day, 24 hours a
day, 52 weeks a year.
Record companies would have to agree that there'd be no limits on how many
songs you could download, so long as you were willing to pay for each one;
this is a major reason their own sites haven't been more successful.
4. Keeping the rate that low would:
5. Last but not least, the monies received would be portioned out fairly. I'm no economist, but the model might read something like this:
There are all kinds of other protocols you could implement once you knew whether this worked. For instance:
And now, on to the fun stuff:
Emails received: 1268 as of 07-30-02 (does not include message board
posts)
Number of times the article has been translated into other languages: 9.
(French, German, Chinese, Japanese, Italian, Spanish, Portuguese, Russian,
Yugoslavian.)
Times AOL shut my account down for spamming, because I was trying to
answer 40-50 emails at a time quickly and efficiently: 2
Winner of the Put Your Money Where Your Mouth Is award: Me. We
began putting up free downloads around a week after the article came out.
We will attempt to put up one free download a week for as long as we can -
and leave them all up.
Change in merchandise sales after article posting (previous sales averaged
over one year): Up 25%
Change in merchandise sales after beginning free downloads: Up 300%
Offers of server space to store downloads: 31
Offers to help me convert to Linux: 16
Offers to help convert our download files from MP3 to Ogg Vorbis: 9
Offers to publish a book expose of the music industry I should write: 5
Offers to publish a book expose of my life I should write: 3
Offers to ghost-write a book expose of my life I shouldn't write: 2
Offers of marriage: 1
Number of emails disagreeing with my position: 9
Number of people who reconsidered their disagreement after further
discussion: 5
Interesting things about the emails: All but 3 were coherent. Of those,
one only seemed to be incoherent, but was in fact written by someone who
spoke no English, and used Babblefish.com as a translator. (Sample:
"I love your articles and play your music for my babies" became
"I love babies and want to touch your articles.")
Silliest email: A songwriter who said he was going to download all my
songs, burn them to CD's, and give them away to all his friends. Thank
you!
Biggest irony: I'm writing this on a Sony Vaio laptop that came with my
first ever CD burner, and easy instructions on how to copy a CD or
download a file.
And from the emails:
"Several years ago the music industry reached an agreement with CD
manufacturers to receive a royalty on blank, recordable CD's to compensate
for the effects of copying music.. the recording industry is receiving a
royalty for the "Audio" CD so that it can be used for copying
music, taking the money, and then turning around and complaining that the
CD is being used to make "unauthorized" copies. Now what is up
with that? make up your mind!" (bohannon)
"…America On Line became so prominent by sending out CDs of their
product via direct mail. Their growth rate quickly exceeded the capacity
of their infrastructure, but that problem does not affect the music
industry: they have the infrastructure. Why in the world do they not sign
more small artists to a one-record deal, with "first-dibs"
rights guaranteed to the record companies, for a comparatively small fee
to the artist for the first record? They could send out CDs just the way
AOL does, except with maybe 20 cuts per CD, of different artists, mailed
quarterly? Eighty good artists per year, in your mailbox. If only one
catches fire, the record company exercises their "first dibs"
option, the artists can't bolt to a different label, and they get signed
for a more standard record deal. Anyone who doesn't catch on gets dropped
after one CD… at least they got a shot. Would the cost of this positive
publicity really be any more than the cost of fighting file sharing?"
(henry1)
"…they should take a tip from the movie industry and modern DVDs,
which so overload the consumer with clear and compelling value that even
those who wouldn't bat an eye about downloading a CD and not paying for
it…have no motivation to spend dozens of hours downloading and piecing
together all the value and quality available in a $25 DVD. I've bought
DVDs for $20 where the movie was the tip of the iceberg--music tracks,
documentaries, interactive presentations, audio tracks, stills, screen
tests, and on and on….They can fight with compelling value--whether it's
built in videos, computer games, free tickets, unique passwords to go
download bonus tracks, demo tracks and dance mixes…karaoke tracks for
each song, alternate vocal takes…Who could, or would, want to spend the
time reproducing all that via downloading? As long as the consumer
experience of a music CD can be duplicated with an hour or two of
downloading and a quick burn to CD, they aren't going to convince anybody
who might actually buy the CDs (but aren't, because they can download
them) to do so…Rather than do things to alienate the current base of
consumers that regularly buy their product, they should focus on adding
value to their product." (kevin)
A final note:
Our representatives are not in Congress or the Senate because they want
to make a better living. They're there because they want power, and
influence. Without the office, they have neither.
If they believe their actions will cause large amounts of the population
to vote against them, no amount of money will be sufficient to buy
their cooperation. If you let your representatives know, en masse, that
you will not vote for them if they support ridiculous measures such as the
bill allowing media companies to spread viruses on the computer of anyone
"suspected" of file-sharing, and if enough of you tell them so,
they will NOT work hand in glove with the RIAA.
We cannot possibly match the monies the record companies can devote to
litigation, but we CAN threaten to vote those representatives who are in
bed with them out of office. And ultimately, it's the votes they care
about.
* The article describing this bill can be found at http://news.com.com/2100-1023-945923.html?tag=fd_lede
Write to your representative and be heard on this subject!