Decided to put up another.
It's been a while, but I've got a new 8tracks mix up, titled Damage. It's just stuff I've been listening to recently.
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.
I finally had some time to think about a new mix for 8tracks, and I decided on a post-apocalyptic theme this time around. Enjoy Disintegration Nation:
Meghan McCain defines Punk RockTM:
STEVE DOOCY: I'm looking -- I'm looking at your website, I had no idea that the Ramones were your, uh, favorite group of all time --Hmm... not quite.
MEGHAN MCCAIN: [laughs]
CINDY MCCAIN: [laughs]
DOOCY: -- because right now, you've got this thing with, uh, with LindaRamone[Cummings], if people are interested, check it out --
M. MCCAIN: Yeah.
DOOCY: -- because you two travel around.
M. MCCAIN: She's incredible.
DOOCY: Yeah. Go --
M. MCCAIN: She's so cool, and we're going out on this whole new thing that the only way to be be Punk RockTManymore is to be conservative.
GRETCHEN CARLSON: In your --
M. MCCAIN: So only Punk RockTM[indeciferable]
CARLSON: In your book, Meghan...
[edits mine]
A few days ago, I wrote my thoughts about Muxtape's closing and relaunch. A commenter suggested that I write to Ouellette about approaching independent labels, so I did. My email to Ouellette is published in the comments section. Yesterday, I got a response:
I did consider approaching independents, but it would've been extremely complicated logistically. Doing a deal with the four majors is possible with a small team of experienced lawyers, but there are literally thousands of independent labels each with their own ideas about how licensing should work and I can't even touch on the complexity of that problem. Also I couldn't have paid for it, especially in light of the fact that what I'd be selling to investors was a crippled version of the original site with a big question mark on the final price and the necessity of even licensing at all.I want to thank Ouellette for taking the time to respond to my email -- I'm sure that he got a lot of questions/opinions about Muxtape in recent days. He's absolutely right about the logistics of approaching independent labels, and I suspected that would be a major barrier. The opt-in solution is a very good approach, and I also share Ouellette's optimism that many independent bands and labels will opt-in themselves. And if enough independents opt-in, I think Muxtape could have an opportunity to show the major labels and the RIAA why fighting digital file-sharing may not be in their business' best interest.
Even if the label negotiations had gone swimmingly well they still took up a massive amount of my time. Negotiating with independents would've been many times worse in that regard, and the site would've suffered badly. Then who wins? Muxtape was originally possible because I was free and agile to build whatever I wanted to, and that's what I'm trying to get back to. It's not just editorial control, it's the ability to say, write and release an iPhone app without having to ask someone's permission.
I think the only way to do that right now is to make the whole service opt-in. Labels and bands that see the value in it will be able make the judgement call for themselves whether or not it's right for them (and I suspect a lot of them will).
Justin
The most interesting thing about Justin Ouellette's revealing post regarding the RIAA's take down of Muxtape is how the RIAA acted independently of the labels that the organization represents.
Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.As Ouellete points out, the labels understood the inherent value of Muxtape -- viral marketing and mouth-to-mouth promotion of music, which creates a consumer generated community organized in a central location on the internet. The fact that the RIAA moved autonomously of the labels signifies that the organization does not understand the cultural value its content has for consumers, and instead views this content as nothing more than "product."
Muxtape has an explanation for the RIAA take down in August, posted today:
[O]n August 15th, I received notice from Amazon Web Services (the platform that hosts Muxtape’s servers and files) that they had received a complaint from the RIAA. Per Amazon’s terms, I had one business day to remove an incredibly long list of songs or face having my servers shut down and data deleted. This came as a big surprise to me, as I’d been thinking that I hadn’t heard from the RIAA in a long time because I had an understanding with the labels. I had a panicked exchange of emails with Amazon, trying to explain that I was in the middle of a licensing deal, that I suspected it was a clerical error, and that I was doing everything I could to get someone to vouch for me on a summer Friday afternoon. My one business day extended over the weekend, and on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account. I moved the domain name to a new server with a short message and the very real expectation that I could get it sorted out. I still thought it was all just a big mistake. I was wrong.I'll post my thoughts after I've had some time to think about everything involved. But perhaps this will give me the motivation to get off my ass and write some new songs...
Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over. I also learned that none of the labels were especially interested in helping me out, and from their perspective it had no bearing on the negotiations. I disagreed. The deals were still weeks or months away (an eternity on the internet) meaning that at best, Muxtape was going to be down until the end of year. There was also still the matter of how to pay for it; getting investment is hard enough in this volatile space even with a wildly successful and growing web site, it became an entirely different proposition with no web site at all.
And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to. They’d already taken so much attention away from development that I started to question my own motivations. I didn’t get into this to build a big company as fast as I could no matter what the cost, I got into this to make something simple and beautiful for people who love music, and I plan to continue doing that. As promised, the site is coming back, but not as you’ve known. I’m taking a feature that was in development in the early stages and making it the new central focus.
Muxtape is relaunching as a service exclusively for bands, offering an extremely powerful platform with unheard-of simplicity for artists to thrive on the internet. Musicians in 2008 without access to a full time web developer have few options when it comes to establishing themselves online, but their needs often revolve around a common set of problems. The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format. Bands will be able to assemble an attractive profile with simple modules that enable optional functionality such as a calendar, photos, comments, downloads and sales, or anything else they need. The system has been built from the ground up to be extended infinitely and is wrapped in a template system that will be open to CSS designers. There will be more details soon. The beta is still private at the moment, but that will change in the coming weeks.
[...]
I've decided to bring back the Brutalism tape in 8tracks form, so some songs had to be cut and a few new ones were thrown in to keep it fresh. Here it is:
I've got a new 8tracks mix up, Raucous Imminence. This is an idea that I had been throwing around for a Muxtape tape -- music that sounds incredibly urgent, that makes me feel like I need to get up and do something reckless without hesitation. Today's 8tracks mix includes:
While Muxtape sits in legal obscurity, I've been looking for other options. I discovered the website 8tracks this morning and it's looking the best so far. Unlike Mixwit, you can upload your own songs, which is exactly what I need. Mixwit is simply an aggregate of existing links on the internet -- you are not allowed to upload your own music. Most of the music that I own is not available through existing links because of its obscurity, so the ability to upload the music I own is essential. 8tracks also seems to be on more solid legal ground:
At current royalty rates, the hourly cost per user is just over $0.02 per listener per hour in 2008, increasing to nearly $0.03 per listener per hour in 2010. This means that 8tracks must earn a net CPM from advertising of at least $20 in 2008 (i.e., $20 per 1000 ad impressions = $0.02) and nearly $30 in 2010 (i.e., $30 per 1000 ad impressions = $0.03) to cover the cost of streaming sound recordings. In addition, 8tracks pays musical works royalties to ASCAP, BMI and SESAC, which generally comprises 3%-5% of revenues.My 8tracks page can be found here, and I've created a test mix called The Longest Songs:8tracks is taking 2 steps to reduce its royalty liability so can sustain itself as a business. First, it is opting into a Small Webcaster license offered by SoundExchange (at the request of Congress). This license provides for royalty payment on the greater of a percentage-of-revenue or percentage-of-expense basis, subject to a minimum fee, which will allow us to grow our user base -- and our potential for advertising -- before having to pay the more onerous compulsory rates owed on a per song, per listener basis.
Second, 8tracks is seeking direct licenses with independent record labels and artists who generally see greater promotional value in internet radio -- given relatively few alternative channels for exposure -- and are thus more willing to consider the percentage-of-revenue terms common to all other forms of radio (traditional, satellite, cable).
Muxtape is down. The website's blog says that no artists or labels complained. I hope that Muxtape can come out of this unscathed.
I really feel that the RIAA is overreaching here. This broadening copyright enforcement nonsense is quickly becoming ridiculous. As I have said before, how is Muxtape really that much different from radio? To make another analogy, isn't a website like Muxtape just the piano roll of our times?
Muxtape is merely a digital version of cassette mixtapes. Muxtape has taken pains to ensure that songs cannot be downloaded, that songs are accompanied with a link to Amazon's mp3 page, and that tapes have a variety of song selections (no tracks from the same artist/release on the same tape).
The fact that it is digital shouldn't make any difference, but the fact that it does means that the RIAA is still living in analog fantasy land.
[UPDATE]: The RIAA has released a statement regarding Muxtape:
For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings.[UPDATE 2]: Ars Technica reports that Muxtape's future is likely grim:
Actually, it looks like Muxtape may indeed be closed indefinitely. The RIAA says it has been in communication with the site over the past several months over the getting the "illegal content" taken down. In order to get the RIAA's official blessing, Muxtape would likely have to sign a licensing agreement and begin paying royalties à la last.fm and Pandora. An agreement would dissipate the legal gray cloud hanging over Muxtape, but the royalty burden may well prove onerous, as industry stalwarts like Pandora are considering closing up shop due to the high royalty rates demanded by rightsholders.Damn.
It's about time I put up a new muxtape -- the Feminism tape. This edition has a theme of women musicians -- all the bands feature women entirely or in prominent ways. Check out Punk77's Women In Punk as well.
I haven't updated my muxtape with something new in about two months. I'm a bit torn about changing it, though -- everyday or so someone new decides to add it to their favorites, and I'd rather not change the whole tape soon after someone has added my tape to his/her favorites. Since Brutalism went up, I've gone from having 12 fans to 27 fans (including Alternative Tentacles Records!).
But that doesn't mean I haven't been thinking about a new tape, I just haven't decided on a good theme for the next one yet.
Some ideas that've been floating around in my head are the Annihilation Tape (which might include Crucifix, Conflict, Resistance 77), the Riot Tape (Dead Kennedys, Violators), and the Epicly Epic Tape, which would include songs that have build-ups to the most crushingly suffocating crescendos I've ever heard (Pg. 99, Hair Police, The Blood Brothers, Circle Takes the Square, Black Sabbath, Lighting Bolt).
Part of the delay is me having a hard time finding the songs I want to put in a new muxtape within my existing mp3 collection and not having the desire to go through the lengthy process of ripping the songs from my vinyl collection. Another part is the fact that I'm still trying to find the best 12 songs for any of my tapes.
So for those who are waiting, hopefully I'll have an update soon.
Yesterday I read this old article on Ars Technica about the UK government's decision to cap copyright protection at 50 years:
The music industry had lobbied the government hard for a copyright extension, saying that it was necessary to protect the rights of musicians, especially groundbreaking acts whose older songs were about to hit the 50-year limit.Here's where I have a problem:
Criticism from the music industry has come fast and furious in the wake of the government's decision. "Thousands of musicians have no pensions and rely on royalties to support themselves," said Roger Daltry, lead singer of The Who. "These people helped to create one of Britain's most successful industries, poured money into the British economy and enriched people's lives. They are not asking for a handout, just a fair reward for their creative endeavors."With all due respect, fuck you Roger Daltry. There are a lot of professions, many of them non-creative, that provide no pension. Daltry made tons of money as the lead singer of The Who, and it's not the younger generations' fault that he couldn't think ahead and plan for his own future through investments like the rest of us. Yet, this fucking rockstar has the gall to complain about his copyright expiring. As far as I am concerned, Daltry has already received his just reward of exclusive copyright as an incentive to create further works; however, he'd rather keep culture off-limits to the people for his own monetary gain.
Critics of extended copyright protection point out that musicians already enjoy 50 years of royalties and that copyright laws attempt to balance the rights of artists with a desire to encourage new works and ensure a rich public domain for new artists to build on.Copyright was designed to be an incentive to creative further works, not an economic safety net. At some point we have to allow creative works into the public domain, otherwise it will become increasingly difficult for new artists to create new works. If we want a rich and diverse culture, a healthy public domain is necessary for people to comment and improve upon the creative works that influence them. Moreover, we cannot expect people to sit on the sidelines and only passively interact with their culture, nor should we strive for such conditions.
During the first week of April, I discovered the website Muxtape.com. The site allows people to create free accounts to put together online “mix tapes” to share with others. Muxtapes are limited to 12 songs, and users are not allowed to upload more than one song from a single release or artist or have multiple muxtapes. Muxtapes are not available for download and all submitted songs are accompanied with a link to Amazon.com’s mp3 downloads section. I thought that this website was a great compromise between music fans who want to share music via the internet and a music industry that is increasingly hostile to such sharing. I also just wanted the chance to make my own virtual mix tape to share with other people!
One of the songs that I selected for my first muxtape was from the mostly unknown Philadelphian band FNU Ronnies, titled, “Silver Bullet.” I had only first heard about the band a week prior from a close friend, but was nonetheless impressed with the song. I recorded the streaming audio on my computer as the song played on the band’s Myspace page, much the same way I used to make cassette tapes from songs recorded from radio. Up went the song onto my muxtape.
A little more than two weeks later I got an email inquiring about the song. The author of the email wanted to know how to get a copy -- I only mentioned that I had recorded the song from Myspace, as I was still waiting for my copy of FNU Ronnie’s debut 7” from Parts Unknown Records. About a week after responding to the email, I received a strange comment on my blog. The post was about Yoko Ono’s lawsuit against the producers of the anti-science film Expelled for their use of John Lennon’s “Imagine.” In the post, I discussed the copyright issues involved. The comment on this post asked me how I felt about individuals “illegally trying to sell” music “ripped on the internet”; a strange comment, considering its lack of relevance to the post. That tipped me off to search around for information about the commenter.
After a short Google search, strong circumstantial evidence led me to believe that the comment came from FNU Ronnies, as did the email I had received a week prior. This turn of events puzzled me. My experiences with music subcultures, specifically those rooted in punk rock, have given me an anti-copyright impression. Many of the bands I have known and have been involved with never considered actually copyrighting music. Labels I have known and have been involved with were never concerned with file-sharing or lost sales. Furthermore, my close friend who introduced me to FNU Ronnies informed me that the debut 7” is nearly sold out. Clearly, my inclusion of “Silver Bullet” cannot be cutting into sales, right?
I must admit, though, that this all is likely to have been in jest. FNU Ronnies is a part of a new musical movement -- Skull music -- which combines early ‘80s American hardcore (YDI, Black Flag) with the strange-yet-hard-sought-after punk classics (Mentally Ill, The Eat, Remo Voor) released on the Killed by Death (fan music blog link) record label. Self-described Skull bands, such as Clockcleaner and Homostupids, engage in a sort of confrontational performance art along with their music. Clockcleaner’s Nevermind album (a re-appropriation of Nirvana's second album title) was named as such to enrage listeners -- guitarist and vocalist John Sharkey stated in an interview with Dusted Magazine, “I kind of wanted people to react like, ‘What balls! Who the fuck are these assholes?’” The fun doesn’t stop there, either: legend has it that Sharkey pissed all over the merch of rival band Bad Wizard at one show and intentionally knocked over a kid with cerebral palsy at another performance (I know; I was there). So my confrontation with FNU Ronnies is likely to be a part of the Philadelphian humor; however, the incident did get me thinking further about copyright issues.
Sites like Muxtape allow people to share music (hopefully) without the fear of a “Cease and Desist” letter from their ISP or a lawsuit from the RIAA. I was a bit shocked that an artist would take offense from a fan putting one of his/her songs on a muxtape for other people to hear. My intentions had been to share the music that really resonates with me. That’s how I’ve almost always discovered new sounds -- someone I knew made me a copy of some new music and gave it to me for listening. This is classic mouth-to-mouth advertising, arguably the best advertising one can get.
There is one critical difference, in the eyes of the industry, between mix tapes/CD-Rs and digital file-sharing -- scale. Sharing music online is easier and faster than sharing has ever been. But how different is a site like Muxtape from a radio broadcast? What about a Myspace music page? Why are these digital streams viewed as different from their analog counterparts?
What are Muxtape and a Myspace music page, ultimately? They are both platforms for distributing music digitally. Instead of a corporate, computer generated play list that is simulcast throughout tens -- even hundreds -- of radio stations, fans and artists are put in the DJ seat. Those who enjoy the culture of their music are participating in that culture by sharing it with others. In other words, they are in a position of control at the individual level of the culture they enjoy.
And that is the difference -- control. Radio broadcasts happen on federally licensed airwaves. Only a select few have access to these avenues of distribution. The content providers have a vested interest in their distribution model succeeding because of the vast amount of resources spent. The internet appears to be the great equalizer in this equation -- it provides a democratic distribution model. Anyone, anywhere, can share music with anyone, anywhere. The music industry is used to being in control of their distribution model and now the industry is trying to apply that system of control to a distributed network based upon protocols. The end result of this is technological quick fixes that have no way to enforce a control model -- DRM (Digital Rights Management) and copy-protection is easily hacked, bypassed, and subverted.
What does this mean for the future of music and file-sharing? The music industry is already of the opinion that file-sharing is the equivalent of lost sales. The data on this varies by who you ask -- in 2004, a study conducted by Felix Oberholzer-Gee of Harvard University and Koleman Strumpf of the University of North Carolina concluded that file-sharing increased CD sales for top selling albums. The RIAA will point to research by Edison Media Research which claims that file-sharing has decreased CD sales; however, Jupiter Research conducted two studies (in 1999 and 2002) which concluded that music fans who shared music files for six months were 75 percent more likely than average online music fans to purchase more music. If file-sharers are the industry’s best costumers, how can they be the cause of a loss of sales?
Instead of attempting to circumvent possibly the best form of advertising being offered on a silver platter by fans, the music industry should embrace these technologies which can bring music to people’s ears faster than ever before. Music fans are so rabid about their favorite artists that the industry wouldn’t have to do much to promote those artists. But this is a risky new democratic model, as it could lead to super-smash hits being relegated to a lesser role and will remove the control the industry has relied upon to make low-risk investments in new artists. But couldn’t such risk stimulate an environment that feeds off of creativity and innovation, rather than following a tried-and-true model?
That's what this post, by Alex Tabarrok (associate professor of economics at George Mason University), seems to be implying. I came across this today while doing some research on music and copyright issues. Tabarrok's argument seems to be that payola is nothing more than payment for advertising (since playing a song from an album is just the same as a 30-second TV ad for that album), so there's no reason for it to be illegal.
Tabarrok seems to have missed the point entirely, and a quick Rock 'n' Roll history lesson would do him well. When this was an issue back in the '50s, radio DJs were very influential people. The were also very individualistic, bringing their own tastes and opinions about what they considered good music to the airwaves. DJs called the shots about what would be played and what wouldn't, and a DJ sunk or swam based on the kind of buzz s/he could generate with his/her play lists. In this context, it is quite scandalous to find out that record labels had been paying DJs to play certain songs.
Furthermore, radio stations were the method of distribution for new music back then. There was virtually no other way to hear about new music except on the radio. To allow labels to pay for their songs to be played would give monopolistic control to the highest bidder.
Yes, payment to a radio station to play a certain song isn't necessarily illegal, but the reason this is so is because stations must disclose such transactions to listeners. That's what makes all the difference -- listeners aren't being duped into believing that the DJ really digs the song s/he is playing and wants other people to hear it too.
But this really is a non-issue today, considering that radio stations employ computer generated play lists simulcast throughout all the parent company's radio stations. People don't really look to DJs anymore for what's new, interesting, or different in music. Moreover, the radio is no longer a leading medium in which music is distributed but is instead a competitor among many different mediums; therefore, it's influence is somewhat diminished.
More importantly, though, Tabarrok glosses over the other key criticism that still stings quite well in today's climate of ultra-consolidated media conglomerates. He characterizes the argument as, "big record companies would use their wealth to promote music that listeners would prefer less to what they would have heard without advertising." Not quite. The fear is not that big record companies would promote "music that listeners would prefer less," but that big record companies would have more power to promote their own catalog over those of smaller, independent labels who don't have quite as much capital to spend on this kind of "advertising." Payola, in this sense, would be rigging the playing field in favor of established labels with established money-making artists.
A further side-effect would be a chill in creativity and innovation. The major record labels don't like to take risks and will continually invest in the tried-and-true models. Major labels will let the independents take all the risks, and then sweep up the break-out bands that create new music trends. What we would have is a system in which the entrenched styles are promoted the most because the majors are antsy about taking risks, and the independents' abilities to produce and promote break-out bands would become diminished.
