the music industry’s last caress

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sam rosenthal is a very driven man.  he’s built projekt records from the ground up, by himself, starting out as a way to release his own music as black tape for a blue girl.  he did this back in the early 80s when starting your own record label was something you didn’t do, and his record company has always moved somewhat against the grain.  since 1983 he has singlehandedly made his company successful, at lest, successful enough that he can afford a roof over his head, veggie chicken nuggets in his son’s tummy, and a few staffers.

sam rosenthal is a very opinionated man.  he often uses his monthly newsletter as a soapbox for rants about politics and music.  he’s a die-hard democrat, and lambasted us far-lefties for voting for Nader in 2000 and not Al Gore.  And you know what?  He was right.  But that was a different time — we all figured Gore was a shoe-in (no one could really vote for such a doofus like G-Dub for President, right?), and giving the Green party 3% of the vote meant they could get a real campaign fund — and a real shot — in 2004 and beyond.  In retrospect, Al Gore would have been great for our country, and given us a lead in clean energy research.  hindsight 20/20 and all…that’s behind us.  but sam doesn’t let us forget it.

sam rosenthal is a very angry man.  he’s angry at you.  yes, you.

recently, he’s stood up on his newsletter soapbox once again to talk about file sharing.  he’s talked about his thoughts on the subject before, and in the beginning, he was for filesharing services, back in the early days of napster.  i think we can all agree that things have changed a lot in the 10 years since napster got its start.  in fact, i’m going to say that the entire music industry has changed.

a couple weeks ago sam posed the following question, in big, bold writing:

If 95% of what you did for a living was stolen rather than paid for, how would you feel?

this was in response to a report by the international federation of the phonographic industry that 95% of all digital music was acquired illegally (as reported by the new york times).

it’s a bit of a gross oversimplification of the situation.

here’s how the law and concept of ownership typically works:  i have a product to sell.  you buy my product.  that product becomes yours to do with as you please.  as is often cited, the “Death of Music!” cry was first heard back in the days of cassette copying.  People won’t buy music! was the paranoid claim from the recording industry.  if the theory as applied to the current state of the music industry is the same as the basic concept of ownership, once i purchase a cd, i own it, and i can do whatever i want with it.  the reason the recording industry can’t claim royalties on used cds is based on this same concept of ownership — you purchased it, and you chose to sell it, therefore they can’t claim any additional royalties for the resale.  so, if i purchased a cd, i should have the same right to convert the audio data stored on that cd to mp3 (or other formats) and store it on my computer.  and, by the same rights as if i loaned a friend my cd — or sold it to them for that matter — i should likewise be entitled to give my friend a copy of the mp3 i just made, so they can check out this band i like so much.  this is the premise of filesharing, and it is the reason i think the whole copyright infringement for music acquired via peer-to-peer or other filesharing networks doesn’t hold water.

the recording industry wants to claim that digitizing your music — you know, the cd you just payed for — is unlawful usage.  since they sell mp3 copies of the music, if you make your own mp3 copies of your music, you are — by their claim — infringing their copyright.  that idea is ludicrous.  it’s like saying i violated a law by checking out a cd from the library.  i didn’t actually purchase the cd, so my possession of it is unlawful.  this is the reason the RIAA has failed in most of their lawsuit attempts that have gone to court, and why most of their suits are settled out of court (in fact, they tend to push the victims to settle out of court, a move which seems to imply that they know they have no claim, they just don’t want you to know that).

the problem with the filesharing model is that, chances are, these people are not my friends — they’re just random peers on the network.  people who, by the very nature of the software, are completely anonymous.  this is where it gets sticky.  because you can’t allow one usage (me giving my friend some mp3s of stuff to check out) and disallow another usage (sharing whole catalogs via BitTorrent).  a few years ago, the record industry started trying to blame the software — if it wasn’t for software like bit torrent, this wouldn’t be a problem.  but stifling software development impedes creativity and innovation.  and anyway, it’s not the software’s fault that it’s used this way.

and so, it seems, the whole issue has come to an impasse.

but recently, musicians have started to take a stand, again, against filesharing, this time appealing to our sense of decency.  and their method is by making claims like sam: you’re stealing music from innocent victims, it’s just the same as walking into best buy, picking up the latest Muse cd, and walking out with it, without paying (imagine this scenario without the lights and alarms that would sound as you walked out the door).

there’s one big problem with this argument: it’s not going to work.

10 years is a long time, and this is a whole new method that has gained momentum steadily over that time.  it’s become a part of the way we do things, and — because we value bits different from atoms (see: chris anderson’s free ) — we feel entitled.  telling people that what they’re doing is very, very bad is not going to change anything.  it may change a few people’s minds who were on the fence, and it may embed a sense of guilt when they click that download link, but it’s not going to change the movement that began 10 years ago with napster, and — if you think about it — even longer than that if you include cassette copying.

the death of the music industry didn’t happen with dub tapes.  the most that happened was that it created a community of sharing, and opened new doors for people to hear music they wouldn’t have otherwise.  cassette copies were never as good as the originals, and, when CDs came along, a far cry from the disc.  if you really wanted it, you’d spend the $15 and buy the CD, tape, or vinyl.  the same is true for mp3s — they’re never as good as the originals (although some other, lossless formats, like FLAC can be as good as the originals if you’re willing to sacrifice more hard drive space.  i tend to be opposed to FLACs because they can be a crutch to never have to buy CDs again, although, in my experience, their usage seems more specifically confined to collectors who want to back up their music collections).  but, as chris anderson has pointed out, mp3s are “good enough.” but the fact that we can’t get access to new music any other way hasn’t changed, only intensified.  as more pressure is put on the RIAA by the industry’s steady loss of sales, record labels have tried other methods to increase their revenue stream.  this includes buying up all the formerly independent radio stations, and attempting to claim royalties on internet broadcasts by pushing their case in front of politicians (the reason why pandora is constantly in a state of distress).  in effect, the music industry is compounding the problem by making it more difficult to access music other than what’s at the top of the billboard charts.  and those charts themselves are a misrepresentation, because all of those artists, now, are the ones who can afford the huge marketing push by their label to mtv, corporate radio, advertising, etc, etc, etc.  the little guys are lost in the dust.

little guys like projekt records and sam rosenthal’s band, black tape for a blue girl.  projekt has never been a huge seller, but it’s carved out a niche in the goth community, and sam has done well signing on some really great new acts in the last couple years (android lusttearwave, and mira being some of my personal favorites).  it’s no secret that record labels are bleeding all over the floor, and especially with small, independent record stores being replaced by corporate conglomerates like best buy and borders, projekt — and lots of other indie labels — are losing a major avenue for getting their music in people’s hands.  because it’s people like me, and fans of independent, underground, alternative music, who are going to go to the indie shops, and all those shops are closing their doors.  it’s much harder to find representation for your indie music in barnes and nobles — against this week’s top 10 best sellers nationwide — than it is to make some expansive shelf space in a closet-sized, dimly lit indie record store with some crazy awesome music playing on the speakers that you’ve never heard before.

so what’s the solution?  we really don’t want the indie artists to go away.  more than anything, that’s where real innovation, creativity, and art lives. (i can already hear tina turner’s voice in my head singing “we don’t need another coldplay)  but how are we going to find those artists if filesharing is bad and the radio doesn’t play those artists anyway?  are you listening, sam?  no one’s going to go to your show or buy your stuff if they don’t know who you are.  you can’t close off the only way into your music for a lot of people who may grow to become die hard fans.  and i’ll let you in on a secret, sam: android lust? i downloaded her music after reading what you wrote about her several years ago right after signing her.  i then purchased 3 albums.  mira?  ditto that, i have the whole catalog, including the ep.  emilie autumn — i know she’s not signed to projekt, but projekt distributes her music — i wouldn’t have bought opheliac if i hadn’t downloaded it first after reading about it in the projekt newsletter.  there are lots of other artists i can say this about including the dresden dolls and amanda palmer, lots of stuff released by fat possum records, i could go on.  and the fact is that i go to the shows, i hit the merch table, i buy the records.  or i find them online and buy direct from the artist or label or distributor.  the real problem is that increasingly, for a lot of would-be fans, mp3s are good enough.  that is the problem and that is the key to solving the problem.  filesharing isn’t going to go anywhere, so attacking it only makes you look like a bad guy.  what needs to happen is to shift the demand back to the atoms.  last summer, trent reznor posted on his forum some ideas of how to be a label-less, independent musician, and one of the things he suggested was limited-run, deluxe packaged cd releases.  box sets, or really awesome, deluxe, hand-numbered packaging like what dark disco club did with their latest two hearts, one blood release, which came with a neat, hand-sewn cd booklet. monetizing your music by other methods is another option.  amanda palmer has supplemented her income by doing webcasts. all over asia, artists are becoming popular through filesharing and making up the difference by selling ringtones and touring.  in south america, touring bands will send cd-rs of their music for cheap to be bootlegged and passed around to create a buzz before they come to town on tour.  ashley morgan uses a micropatronage system.  we can’t think like the old recording industry dinosaurs anymore.  the climate has changed; it’s time to change with it and come up with new and innovative ways to get your music out there.  this is an exciting time — a time when the playing field has been leveled — right now you have just about an equal chance of getting heard whether you’re on a major label or no label, and that’s what the big labels hate and are trying to fight.  killing filesharing is not the solution.  stop thinking like the big guys, sam, and start thinking like an independent again.