Constitutionality of RIAA Lawsuits Being Challenged

Joel Tennenbaum is currently being sued by the RIAA for having 7 songs in a shared folder when he was 17 years old. Tennenbaum is now in his 3rd year of graduate school. The RIAA is asking for damages amounting to more than $1,000,000.

Charlie Nesson is representing Tennenbaum and challenging the constitutionality of such lawsuits in the hope of stopping any similar lawsuits in the future. If successful, individuals who have shared music in a personal, noncommercial fashion could no longer be targets in the RIAA's sights.

Nesson and Tennenbaum were interviewed by David Weinberger, Harvard law professor, yesterday. Nesson lays out the grounds on which the lawsuits are being challenged. He makes the comparison between file-sharers today and radio broadcasters in the '50s; both individuals engaged in a similar activity -- sharing music for free. The difference, Nesson points out, is that the broadcasters were given payola, while file-sharers are sued ridiculous amounts of money. He also states that the RIAA's tactics are constitutional because they are a private company using the federal court system to enforce civil lawsuits through coercion, threats, and fear, amounting to extortion tactics.

Both Nesson and Tennenbaum recognize and articulate the concept that the music industry has decided to fight against file-sharing and digital technology in order to continue using their old business model rather than embrace these new technological and cultural changes by adopting a new business model.

I'll be watching their case to see how it develops.

The New Distribution Model

Music is undergoing some radical distribution changes lately.

First we had Radiohead's In Rainbows, which was released in a pay-what-you-want fashion via digital download. While the results of Radiohead's experiment are still unknown, we do know that the physical release of In Rainbows in CD and vinyl formats sold 122,000 copies in the first week. While that isn't as well as Hail to the Thief sold in its first week (300,000), it certainly wasn't a flop. And don't forget that Gigwise reported that In Rainbows sold approximately 1.2 million digital downloads, which is significantly more than the debut of Hail to the Thief.

After Radiohead's experiment, Trent Reznor of Nine Inch Nails revealed that he would release Saul Williams' The Inevitable Rise and Liberation of NiggyTardust for free or for $5 for higher quality mp3 files. And now Reznor has taken it a step further with his own Nine Inch Nails release of Ghosts.

First, I want to mention that Ghosts is being licensed under the Creative Commons License, which is a significant departure from current copyright laws that govern most of our culture. The Creative Commons License allows the ability to copy, share, distribute, perform, and display a work. The license also allows any derivative or transgressive works to be made from the original work. All that is required for such freedom is attribution to the original artist, non-commercial use of the original work, and that any derivative or transgressive works be licensed under the Creative Commons License. This kind of license really puts the culture back into the hands of the people and not solely into the hands of authors and producers -- this is how we can encourage creativity while also making creative works financially rewarding.

A four volume music set, Ghosts is being offered through a variety of distribution methods. There's a digital download for the first volume, which has been made available for free. Reznor has also taken it upon himself to upload this first volume to bit torrent, which is revolutionary. Here's what Reznor said on the subject:

Now that we're no longer constrained by a record label, we've decided to personally upload Ghosts I, the first of the four volumes, to various torrent sites, because we believe BitTorrent is a revolutionary digital distribution method, and we believe in finding ways to utilize new technologies instead of fighting them.

I think this would be the first time that a major, mainstream artist has voluntarily uploaded his/her music to bit torrent him/herself.

Alternatively, music fans can purchase the entire set in higher quality mp3 files for $5 via digital download. There are several options for the purchased digital files -- 320 kbps LAME encoded and fully tagged, FLAC lossless, and Apple lossless. All digital files are 100% DRM-free. The digital download also comes with a 40 page PDF file and other digital extras.

The two CD set comes with everything from the $5 digital download plus a double CD in a six panel digipak with a 16 page booklet. Then there's the deluxe CD set, which has all of the above plus a DVD with the multi-track session for all 36 Ghosts tracks in .wav format. This will allow people to easier create derivate and transgressive works from Ghosts. In this set, there's also a Blu-ray disc of the album which has an accompanying exclusive slide show for the music.

Finally, there's was the ultra-deluxe limited edition set (already sold out!), which came with all of the above plus a four LP vinyl box, a book with 48 pages of photographs, and another book with two exclusive Giclee prints. This set was personally signed and numbered by Reznor.

This is quite an amazing array of format options. I think that Reznor's methods are far superior to what Radiohead did first, and I'm really impressed that Reznor is utilizing bit torrent technology (though, I shouldn't be surprised.) This could be the direction that the music industry goes, and I think that it leaves room for existing labels; however, they will have to relinquish some of their existing copyright standards. Reznor's decision to include the DVD of wav files for derivative and transgressive works is at odds with how the industry generally runs itself -- very protectionist and obsessed with content control. Furthermore, Reznor's decision to license under Creative Commons is also at odds with the music industry. If this album is successful, and I think that it's likely to be, I hope that we'll see more artists take similar action.

The RIAA should be pissing its pants right now.

Copyright Protected Music Files

Today I had my first experience with a copyright protected digital music file. A little background; I've stayed out of Apple's iPod world -- the idea of my entire music collection on a portable hard drive hasn't seemed very appealing to me (though, I will add that I'd be interested in one for my car, which has an iPod connector built into it, simply because burning CDs gets tiresome.) One, the quality would not be anywhere near my vinyl (128 Kbps? Psh. If I have to go digital, FLAC or bust); two, I rather enjoy the act of sitting down and really listening to music -- there's something about music predominately being the soundtrack to my life that detracts from the music itself; and three, I've always felt that the digital/CD format allows too many shitty artists to put out an album. Let me explain that a bit. I'm not so much worried about the fact that digital music can democratize the production and distribution of music; in fact, I think that that's great. My problem lies with the mainstream music industry -- the one that peddles us one-hit-wonders with shitty filler albums for $20 a pop. It seems that people are more willing to buy a CD than an LP with one good song on it for the simple logistics that it's easier to skip ahead and listen to your favorite song on a CD.

A little more background; I'm currently a part of a music email list that calls itself "The Last Record Store." It's a lot of fun and a great concept -- randomly selected music lovers on the list submit songs to compete against each other once a week. The person who submitted the song with the most votes at the end of the week gets to submit a second song for the next week's competition. So far I've heard some interesting stuff, and I like the exposure to new music.

My first experience with a copyright protected digital file (.m4p and .aac) comes from this week's competition, which also happens to be the same week that I was randomly selected to challenge the current champion (my submission was Wolf Eye's "Stabbed in the Face," from their Burned Mind LP on American Tapes. The champion has pitted me against Delta 5's "Mind Your Own Business." Noise v. Funky Post-Punk. Wooo!)

The champion's song was originally submitted with an .m4p file extension. I had never seen this before, but I assumed that my trusty Winamp would be able to play the file -- no dice. I checked out what program Windows assumed files with that extension were associated with, and I discovered it was iTunes. I installed iTunes and loaded up the file. I was ready to hear some Delta 5 when iTunes informed me that my computer did not have authorization to play the file. What? That seemed rather strange to me, and after some more research I discovered that .m4p and .aac files are digital music files loaded with DRM (Digital Rights Management) software.

My problem with this is that .m4p and .aac files (and by extension, DRM) is problematic for a dying music industry. Throughout my life, most of the music I listen to was first recommended by someone I know, then after hearing some songs I purchased the record. After listening to that, I discovered what music influenced the record I just bought and curiosity spread like a virus. My point here is that someone shared some music with me, and that caused me to go out and discover new music and purchase new records. Many of my friends are the same way, and I suspect that many other people are too. Both .m4p and .aac files put a wrench in that whole process.

With more and more music listeners going digital, and more and more artists allowing their material on DRM files, how can people continue to share the music they love with others? And the efforts of DRM seem fruitless, since it appears to be rather easy to side-step the .m4p file by converting it to a .mp3 file (as the champion was able to do.) The tech savvy among us will be able to get around this, but many others may not. Why shouldn't they be able to easily share the music they love?

Last I checked, making cassette tapes of LPs in the '80s didn't bankrupt the music industry. If anything, that type of sharing increased the size of the listening audience. We wonder why the music industry is tanking -- it seems to me that they are doing it to themselves.

[UPDATE]: Is this the future of media?

[UPDATE 2]: For further reading, this DRM talk is very informative.

"...To This Decaying Business Model"

Time Magazine writes today that Radiohead's new album is going to be self-released. That's nothing new, but here's what makes it interesting:

In Rainbows will be released as a digital download available only via the band's web site, Radiohead.com. There's no label or distribution partner to cut into the band's profits — but then there may not be any profits. Drop In Rainbows' 15 songs into the on-line checkout basket and a question mark pops up where the price would normally be. Click it, and the prompt "It's Up To You" appears. Click again and it refreshes with the words "It's Really Up To You" — and really, it is. It's the first major album whose price is determined by what individual consumers want to pay for it. And it's perfectly acceptable to pay nothing at all.

Simply awesome. I'd be interested in seeing the data collected, as well as the average/median price paid for the digital download. This has the potential to dispel any myths about file-sharing and bittorrent, especially if it turns out that many people will pay a reasonable price for an artist's music if the buyer knows that his/her money will be going directly to the artist, not a record label.

And this quote from singer Thom Yorke sums up nicely what I think of record labels these days:

I like the people at our record company, but the time is at hand when you have to ask why anyone needs one. And, yes, it probably would give us some perverse pleasure to say 'Fuck you' to this decaying business model.

A decaying business model it is. Record labels are parasites on the hard work of (usually) talented performers. With the rise of digital music, mp3 players, the internet, and a continued decline in the sale of physical copies of music (i.e. CDs), there really doesn't seem to be a purpose for record labels anymore. Artists can now do almost everything that a record label would traditionally handle -- production can be done cheaply with a home computer and the right software; distribution, as well as advertising, can be handled through the artist's website or a social-networking website. Add to that the fact that digital files of music are a much more popular method of collecting music than the purchase of physical copies of music, and the expenses of distribution are a lot lower than they have been in the past.

In a related note, I want to point out that Polyvinyl Records is doing something interesting with digital downloads. If you buy the vinyl LP, Polyvinyl will give you a code to download a digital version of the record from their website. A very cool idea, and one that I am particularly taken with, since I am an avid vinyl enthusiast, but I'd also like to make a digital archive of my records. This just makes that process a little easier!

The end of the Time article raises another interesting point:

Meanwhile, as record sales decline, the concert business is booming. In July, Prince gave away his album Planet Earth for free in the U.K. through the downmarket Mail on Sunday newspaper. At first he was ridiculed. Then he announced 21 consecutive London concert dates — and sold out every one of them.

This is nothing new either, since artists have always made more money on tour than through the sale of records. Just read Steve Albini's "The Problem with Music," which lays out in stark terms just how fucked the average major label act really is.

Once artists set up their own distribution networks through the internet, outside of the music business, there will really be no reason left for record labels to exist anymore. Except for the fact that these labels still hold copyright over most of their catalogs, their demise is almost certain if Radiohead's experiment works.