Ouellette Responds

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.

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

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.

Good luck, Justin.

Muxtape Reimagined

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."

This fundamental misunderstanding is also evident in their ongoing anti-piracy campaign against 12-year-old kids and grandmothers. Not only is such a campaign doomed to failure, but the industry is targeting its best costumers. The only such case to go to trial, Capitol Records v. Jammie Thomas, awarded damages of $222,000 to record labels. Thomas had shared 24 songs on Kazaa, a once popular peer-to-peer network. The ruling has been challenged, the punishment criticized as unfair, and the judge in the case has expressed doubts about the court's decision. The really interesting part about this case is the RIAA's efforts to solidify "attempted copyright infringement" into law. The RIAA doesn't understand that the "product" is much more than a cut of wax, a wound up analog tape, a plastic disc, or a series of digital bits to fans.

The emotional connection that people have with music goes back far in history, before copyright law and "intellectual property." Music transcends boundaries in ways that other mediums cannot. People have "played" with their culture continually throughout human history -- through sharing, modifying, or creating new works from existing works. The recent extension of copyright term limits has cut off people from these previously exercised abilities just at the same time that technology makes it easier to do so.

Muxtape served this emotional purpose well -- music fans were able to share their favorite songs to any interested party like never before. And on the business side of things, Muxtape provided the best possible form of promotion -- mouth-to-mouth advertising. People are more likely to make a purchased based on the recommendation of a real person, friend or stranger, than from record label advertisements on glossy magazine pages. All that potential, wasted. As I have said before, the RIAA is only hurting their own industry with these actions.

I think Muxtape will demonstrate the positives of sharing music through its new focus on the band feature. I find it unfortunate that Ouellette didn't try to reach out to independent labels exclusively and strike licensing deals while also barring major label participation. I think that such an action could have the effect of showing major labels that repressing people's natural desire to share will only hurt their businesses, while also helping out smaller labels experience more recognition and (hopefully) increased sales for their artists. (I'm confident that sales would increase; however, there's little solid data surrounding this issue. This could have been a great test case.) Perhaps this will occur anyway through the band feature. Only time will tell.

Muxtape Is Back! Sort of...

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.

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'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...

The New Muxtape

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.

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).

My 8tracks page can be found here, and I've created a test mix called The Longest Songs:

1. Public Image LTD - Theme (First Edition LP)
   
2. Pg. 99 - A Sonnet to Both Ugly and Murderous Living in the Skeleton of a Happy Memory (Document #7 LP)
3. City of Caterpillar - A Little Change Could Go A Long Ways (S/T LP)
   
4. Pissed Jeans - My Bed (Hope for Men LP)
   
5. Portraits of Past - Bang Yer Head (S/T LP)
   
6. Lightning Bolt - 2 Towers (Wonderful Rainbow LP)
   
7. Big Business - I'll Give You Something to Cry About (Here Come the Waterworks LP)
8. The White Mice - SEWERcide (BLasssTPhlEgMEICE LP)

The cool thing about 8tracks is that users can upload more than one mix at a time. I also like it's simplicity and minimalist aesthetic; although, Muxtape is still more visually appealing. One thing that 8tracks is lacking is the "stumbling" part of Muxtape -- only recent mixes are shown on 8tracks' home page. There is a search option, but that isn't quite the same to me, as I'm likely to just find music I already listen to. And there doesn't seem to be a "Favorites/Fans" feature like Muxtape has; however, I still haven't figured out how the "Following" feature works, so maybe that is something like Muxtape's "Favorites/Fans."

I'll have an 8tracks link in my side bar while I await the verdict against Muxtape. Click the 8 track tape to the right to listen any of my existing 8tracks mixes.

[EDIT]: So it seems that 8tracks has a 10 minute per song limit, which poses a problem for the Pg. 99 track that I had selected (it's 11 minutes long). I've switched it out with another song on the Document #7 LP, "Living in the Skeleton of a Happy Memory."

Aw Fuck...

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.

Feminism Tape

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.

1. Crass - Bata Motel (Penis Envy LP)
2. D.I.R.T. - Democracy (Death is Reality Today 7")
3. Toxic Waste - Good Morning (We Don't Want Your Fucking War Comp. LP)
4. Potential Threat - The Other War (We Don't Want Your Fucking War Comp. LP)
5. X-Ray Spex - Oh Bondage, Up Yours! (Oh Bondage, Up Yours! 7")
   
6. Sacrilege - Dig Your Own Grave (We Don't Want Your Fucking War Comp. LP)
7. Bikini Kill - Rebel Girl (Yeah Yeah Yeah Yeah Split LP)
   
8. Bratmobile - Cool Schmool (Pottymouth LP)
   
9. Blatz - Berkeley Is My Baby (And I Want to Kill It) (Shit Split LP)
   
10. Turboslut - Roadkill (Demo Cassette)
11. Tunnel Canary - Jihad (Jihad / Live At The ECCA 1980 Double LP)
12. Sonic Youth & Lydia Lunch - Death Valley '69 (Bad Moon Rising LP)
    

Muxtape

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.

You May Not Share Your Culture

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?

Brutalism Tape

The time has come for the next edition in my series of themed muxtapes. For the second installment, I decided to create a theme based on sound rather than lyrics. This edition's theme will be one of brutality -- I've put together the most brutal, uncompromising, and relentless sonic waves of destruction that I've heard recently. Click the cassette to the right and enjoy the Brutalism tape!

1. The Nuns - Decadent Jew (S/T 7" EP)
2. DrunkDriver - Women (Born Pregnant LP)
3. The New Flesh - Hopeless (Parasite CD)
4. Clancy Six - Steps to the Body (S/T 7" EP)
5. Black Dice - Narcissus & Echo (Lamb 7" EP)
6. TV Ghost - The Mold (The Mold Demo)
7. Homostupids - Finger (Brutal Birthday 7" EP)
8. No Fucker - Conquer the Innocent (Conquer the Innocent 7" EP)
9. Clockcleaner - Missing Dick (Missing Dick 7" EP)
10. Jazkamer - Friends of Satan (Metal Music Machine LP)
    
11. Pissed Jeans - Fantasy World (Hope for Men LP)
12. Wolf Eyes - Noise Not Music (Human Animal LP)

[UPDATE]: I fixed the files that wouldn't upload, so the tape is complete. Notice removed.

No God Tape

I've decided that I will start putting up themed mix tapes on my muxtape page. The first in this series will be the No God Tape:

1. The Germs - No God (Lexicon Devil 7" EP)
2. Dead Kennedys - Religious Vomit (In God We Trust, Inc. 12" EP)
3. Minor Threat - Filler (Minor Threat 7" EP)
4. Heart Attack - God Is Dead (God Is Dead 7" EP)
5. Government Issue - Religious Rip Off (Legless Bull 7" EP)
6. Crass - So What? (The Feeding of the 5000 LP)
7. Rudimentary Peni - Sacrifice (Farce 7" EP)
8. Chaotic Dischord - Fuck Religion, Fuck Politics (Fuck Religion, Fuck Politics LP)
9. Subhumans - Religious Wars (Religious Wars 7" EP)
10. Icons of Filth - Onward Christian Soldiers (Onward Christian Soldiers LP)
11. Flux of Pink Indians - Is There Anybody There? (Strive to Survive LP)
12. Public Image Ltd. - Religion II (First Issue LP)

If anyone has any suggestions for the No God Tape, feel free to leave a comment.

For archival purposes, I'll post my first muxtape here:

1. Hair Police - Let's See Who's Here and Who's Not (Obedience Cuts LP)
2. Wolf Eyes - Human Animal (Human Animal LP)
3. Kilslug - Autopsy Performing (Necktie Party 7" EP)
4. Mentally Ill - Gacy's Place (Gacy's Place 7" EP)
5. Black Flag - Nervous Breakdown (Nervous Breakdown 7" EP)
6. The Germs - No God (Lexicon Devil 7" EP)
7. Homostupids - Wild Weekend (The Intern LP)
8. FNU Ronnies - Silver Bullet (Digital Release)
9. Sightings - Cuckoo (Sightings LP)
10. Boredoms - No Core Punk (Osorezan no Stooges Kyo LP)
11. Aa - Manshake (Aa LP)
12. Lightning Bolt - 30,000 Monkies (Wonderful Rainbow LP)

Muxtape

I opened a Muxtape account today -- the link (http://illegalyouth.muxtape.com/) will have a permanent place on my sidebar. I'll change my "online tape" from time to time (hopefully, at least once a week), so anyone who's interested in what I'm listening to should check back often.