“Vindicated” after 21 years

This has nothing to do with music, coding or geekery whatsoever, but I wanted to share it anyway.

Since very early on when I quit my “real job” and started doing freelance web development, I’ve been working with a New York lawyer named Zachary Margulis-Ohnuma. Early on, it was my job to focus on building and maintaining a branch of his site that targeted a very specific demographic — one that made me a little uncomfortable. But he seemed like a cool, smart guy who knew enough about technology (he was published in Wired, after all) to understand the stuff I had to say and respected my advice when I gave it.

Photo-of-Antonio-Yarbough-croppedThe last several years he’s been working on a case that involved two teenagers who were wrongfully accused of a triple homicide involving one of the kids’ mother and sister. I got all the updates to the case since I got to make changes to the site. And it was a direction that I was particularly excited to promote — who wouldn’t want to free someone wrongfully accused of murdering their own family?

This week, after 21 years of imprisonment, thanks to my friend/hotshot New York lawyer, Zach, Tony Yarbough was finally freed. And the story is just incredible.

 

 

3 things role playing has taught me about rules lawyers

I spent a good deal of my college life roleplaying. It was a thing I did. In a very visceral way, you could say it changed my life. One thing it taught me about was “rules lawyers”.

A “rules lawyer” is anyone (typically a non-lawyer) who prefers to live according to the letter of the law vs. the spirit of the law. Wikipedia defines this nicely for us thusly:

When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording.

Rules lawyers are the ones who will contest something you’ve said or decided by pointing to the rules/law/charter/other written agreement  by saying “but is says in Section 3.c on page 12…”

The problem with rules lawyers is that it’s impossible to argue with them. Rules lawyer vs. rules lawyer arguments are fun and all, but most of us fall into the not-rules-lawyer category. Which means a lot of backtracking, checking the rulebook, looking online, cross-referencing, etc.

The first thing I’ve learned about rules lawyers: I hate them

The problem goes deeper than just the argument itself. By challenging your ruling, they are challenging your authority, your control of the situation. In a game, it’s easy enough to deal with. Most games accept a fairly fluid interpretation — surely no one can go to jail for not interpreting the rules correctly, or running the rules slightly differently in your game than how it’s written in the handbook. That’s fine. The easy response is “well, that’s not how I’m running the game this time.” But that’s a difficult thing to say, especially against a rules lawyer who may actually know more about the rules than you do. You doubt yourself, and start to waver. It’s not the position you want to be in if you’re trying to lead a gaming group. It’s an entirely more difficult thing when you’re not dealing with a game and are, in fact, dealing with a legally-binding document of some kind.

The second thing I’ve learned about rules lawyers: don’t argue with them

It’s just like the “don’t feed the trolls” adage, arguing only gives them more fuel and, generally speaking, only digs yourself deeper. Arguments with rules lawyers have a habit of escalating themselves. Egos are on the line. Feelings are hurt. People get defensive. Both sides are sure they are right. They are also utterly pointless. Because, as I’ve already said, you can’t argue with a rules lawyer. They’ll keep going back to the document, and you’ll keep trying to argue the spirit of the law against the letter of the law.

Which leads directly to:

The third thing I’ve learned about rules lawyers: the only way to beat them is with a real lawyer

Everyone has a weakness, an Achilles’ heel, and the Achilles heel for rules lawyers are actual lawyers. This can be everything from consulting the actual book to prove you’re right (though, if you attempt to do this to a rules lawyer, be absolutely sure you actually do know the rules better than they do — it’s not advisable) or bringing in an official rules judge or lawyer to review the document in question and make an official ruling, one that can’t be argued with further because it came from someone whose expertise is explicitly the issue in which you are dealing.

A fantastic example of this is the rules lawyering of the Thesis theme several years ago. Chris Pearson said that his Thesis theme didn’t need to be released under the Gnu Public License because, as open source software, he is free to do whatever he wants with his code, including writing code that is released under a non-open source, proprietary license. Matt Mullenweg of WordPress and Automattic disagreed. This went back and forth for some time until WordPress actually had the lawyers from the Free Software Foundation look at the GPL, the code of WordPress, how it was executed, and made an official ruling…in favor of WordPress. Lawyered. Now Thesis is released under a mixed-license; the code that is executed by WordPress (namely all the PHP files) fall under the GPL, but all images and javascript is released under a proprietary license. And since you can’t extract the css and js from the theme without breaking it horribly, it becomes a generally restrictive license preventing illegal copying and modification.

It’s easy to get caught in an argument with rules lawyers, especially when you are in a position of authority where you are making the decisions and running the show. Don’t. Wait for backup. It’s much better, and saves face, to say “let me get back to you” then to say “well, I could be mistaken.” Never admit defeat unless and until you are proven wrong, otherwise you invite more rules lawyering.

That Thesis Thing

Update 7/22/2010: Thesis adopts the GPL!

Over the last few days, the WordPress community has exploded into debate over one thing: Thesis and it’s restrictive, non-GPL-compliant license.  If you’re already familiar with the particulars of what Thesis is and what the debate is, you can skip the summary (to be honest, I’m sick of reading people rehashing the whole thing in order to provide enough background for casual visits, but I understand it’s necessry). I’ve taken the last several days absorbing all the information, the arguments on both sides, and held off writing anything about it until there was more information available.  As GPL-supported commercial themes developers, we’re a bit biased on which side of the fence Chris Pearson — the author of Thesis and DIYThemes — should be, the question is whether it is accurate to require him to comply with WordPress’ GPLv2 license.

What is Thesis?

Thesis is a WordPress theme, plain and simple.  What separates Thesis from some other commercial themes is its’ fairly exhaustive options pages which allow you to control various aspects of the front-end layout and design, as well as its claim of “airtight SEO.”  You have several pages of options allowing you to customize just about every aspect of the layout and colors of your site with an option to use custom-coding to expand it even more.  It promises “lightning-fast” page loads and encourages you to “just add killer content.”

Our initial bias

When we first started doing web design, particularly design based on WordPress, the internet was littered with requests to “customize Thesis theme.”  We took one look at what it was, and made a decision then to never work with it.  Our decision was based on this: if you have a theme that is built to offer unlimited customization options what’s the point of hiring a designer?  The entire point of Thesis is that you shouldn’t need a designer, and if you still do need a designer, obviously the theme isn’t doing its job.  At the same time, it’s easy to  understand without even looking what the pitfalls of a theme like that would be: the very fact that it offers unlimited possibilities is, in fact, more limiting than if it did not.  The typical user is not going to be able to look at a color wheel and say “yep, I want #EAFF63.”  They’re going to look at the range of 16 million colors, maybe pick a combination that looks horrid, and then ask someone else who knows what they’re doing to tell them what they want.  The entire point of hiring a designer to build a custom WordPress theme is that you don’t want to deal with the design elements or the coding, and would rather put your trust and faith in a professional who makes it their business to create attractive websites.  To us, customizing Thesis represented a conflict of interest.

What is GPL?

As stated on our GPL page, the GPL is a software license.  WordPress was forked from an earlier blogging platform that was no longer being developed, called B2.  B2 was released under the GPLv2 license.  Under the terms of the license, any derivative software, modifications, or forks must be released under the same license (or a later version of the license).  So, for example, WordPress could potentially be released under the GPLv3 license, but it could not be released under a more restrictive, proprietary license (like Thesis), or even an alternate open source license like a  Creative Commons license, BSD license or MIT license.  This is an important point, as there has been some discussion of WordPress simply adopting a less-restrictive license: they can’t.  By the terms of the GPL under which the original code was written for B2, WordPress cannot legally adopt another license.  Period.

Our bias towards the GPL

I’ve been a fan of open source for years, ever since I discovered that you could find a free, open source alternative to just about any application you were looking for.  I’ve dabbled more than a little with Linux and used a variety of different open source web software applications for different tasks.  When we finished building our Museum Themes and started getting the site ready for distribution, we were forced to think about licenses.  When Museum Themes was just an idea, licensing wasn’t something we thought about much.  We considered doing a user license and a developer license and a multi-use license.  But when it came closer and I was building up the site, I did extensive research on WordPress, the GPL, and the pros, cons, and debate about whether it’s even applicable (or whether that matters at all).  In the end, we embraced the GPL not because we believed, as derivative software, we’re required to use the GNU Public License or a GPL-compatible license ourselves, and not because StudioPress, WooThemes and many others have embraced it.  It came down to what we wanted to do with our themes and what we wanted our users to do with our themes.

I can — without question — understand not wanting people to steal your code.  We worked long and hard on these themes.  The last thing we’d want is someone else to sell them cheaper than what we are (or put them somewhere for free) after spending so much time on them and losing our fledgling business before it’s even had a chance to spread its wings.  So I can understand Chris Pearson putting a restrictive license on his software; he wants to protect his investment and his intellectual property.  On the other hand, we asked ourselves: what do we want our users to be able to do?  Do we want our users to take our themes and modify them to their heart’s content? Yes.  Do we ever want to limit or restrict how our users use our themes or in what context or otherwise prevent them from using it in any way they see fit? No.  We really don’t.  Do we want to be compensated for putting in weeks and months of hard work designing and coding and then maintaining this site and all future updates? Yes.  Would we be willing to fully offer support to users who purchased our themes through official channels? Absolutely.  Broken down into those terms, adopting the GPL seemed like a no-brainer, and a perfect fit for us.

So we have a partial bias towards the GPL, although we did explore all avenues when we were considering licensing for Museum Themes.

The argument

The debate comes down to this: Matt Mullenweg, founder of Automattic and WordPress, believes themes are derivative works, and therefore require a GPL-compatible license if you are planning on distributing your theme.

Chris Pearson, founder of DIYThemes and Thesis, believes the GPL doesn’t apply to themes, or to him, and doesn’t feel right about releasing his work under any license that requires you to provide the source for free.

There is no precedent in any United States court on this topic, though a some related cases have been tossed around.  According to Matt, in the United States, any time the GPL came into question on an issue like this, the major companies have backed down and settled out of court.

Chris Pearson cites a Florida lawyer’s analysis on the GPL as it relates to WordPress themes, and ultimately determines that themes are not derivatives, fall within the scope of “fair use” and, therefore, the GPL not only does not apply, but doesn’t matter.

Matt Mullenweg asked the Software Freedom Law Center (a pro bono consortium of legal experts with regards to the GPL) to analyse the way WordPress used themes and provide their analysis.  They determined that themes, based on how they interacted with the core WordPress software, were derivatives and therefore fell under the scope of the GPL (although images and CSS files didn’t need to be GPL explicitly since they had no direct relationship with the core WordPress functionality).

And so the debate has been.  Now we’re all caught up to right about where we were last Wednesday when two things happened almost simultaneously: 1) Bill Erickson, a WordPress developer and consultant was dropped from the list of WordPress consultants on the official WordPress site for endorsing Thesis and 2) Thesis 1.7 and 1.8-beta downloads were injected with malicious code.  This started some heated comments to get thrown back and forth on Twitter by both Pearson and Matt Mullenweg and their respective legions, culminating in both appearing live on Mixergy to duke it out (figuratively).  (You can listen to the replay, watch the whole thing, or read the transcript on Mixergy.)

As much as I’d like to, I won’t get into the actual debate and some of the classic comments that will likely be tossed around the internet for months, if not years to come.  The Reader’s Digest version is this: it amounted to nothing.  Both parties were pissed off (though Matt did a much better job of handling it diplomatically while Chris seemed to be verging on hysteria for the last half of the interview), but in the end, Chris Pearson said he would be “personally fraudulent” if he adopted any sort of license that went against his own personal beliefs (in adopting the GPL).  Furthermore, he said the GPL was one of those laws that wasn’t enforceable, comparing it to a Georgia law that prohibited blowjobs.

Despite claims of “character assassination” that Chris made on Twitter, really, the only character assassin by the end of the interview — if there was one — was Chris himself.  However, anyone who’s followed him for any amount of time would know that this is not a new thing.  He’s always been brash and argumentative, verging on nonsensical at times with his perpetual habit of getting lost in tangents and forgetting the question.  Here he is bullying a poor Thesis fanboy into pulling down the theme he created that was designed to emulate (at least in appearances) Thesis.  Here he is going ballistic about Matt Mullenweg giving credit to the open source community for the 7 year anniversary of WordPress.

Chris Pearson’s personality does not prove or disprove the issue of GPL violation.  It doesn’t look good, and certainly explains (at least to some extent) his resistance at adopting the GPL, but it doesn’t matter no matter how much his attitude seemed similar to a person walking into a grocery store and saying “I don’t really feel like paying five bucks for these apples, here’s one, which is what I feel they’re worth.”  At this point in the story, that’s where things would sit.

Discussion

Various theories and arguments have been tossed back and forth.  The, now standard, defense that themes are not required to be GPL and it doesn’t matter anyway by Mike Wasylik continued to be Thesis’ main defense.  He contends:

It’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Programmer Drew Blas sums it up this way:

The long and short is that SFLC’s opinion could be applied to any software that runs on Linux. Meaning you could never have a closed-source software product running on the linux kernel (“Oh, your code calls fork()? GPL!”). It is commonly accepted that simply integrating with an existing product does not produce a derivative work. If your code is totally your own, the GPL has no say over how you license it.

However, WordPress’ lead developer Mark Jaquith has a well-written counter-argument to that the thesis to which is that “themes interact with WordPress (and WordPress with themes) the exact same way that WordPress interacts with itself.”  ”They do not run separately,” he says.  ”They run as one cohesive unit. They don’t even run in a sequential order. WordPress starts up, WordPress tells the theme to run its functions and register its hooks and filters, then WordPress runs some queries, then WordPress calls the appropriate theme PHP file, and then the theme hooks into the queried WordPress data and uses WordPress functions to display it, and then WordPress shuts down and finishes the request. On that simple view, it looks like a multi-layered sandwich. But the integration is even more amalgamated than the sandwich analogy suggests.”

I’m not a software developer, or a legal expert (this much should be obvious), but it seems to me, using the same Linux comparison, that this would be less like a single application running on the Linux platform (which would be allowed under the GPL if the application didn’t call any GPL-specific libraries or functions or include any GPL code) and more like an entire distribution of Linux (Ubuntu, RedHat, Slackware, Gentoo, etc).  Sure, for the 5 seconds it takes to boot up to GRUB, you’re free and clear, but everything after that is touched by the specific distribution, from the loading screen to the desktop environment.  Saying that could be released under a non-GPL license would mean that all the software used in that distribution would need to be proprietary — no GPL software could be used as part of the closed-license distribution.  It’s like booting up Linux and getting a Windows desktop instead.  (In recent history SCO attempted to claim copyright over Linux code, which would have resulted in Linux users and developers being required to pay a royalty fee to use it.  They lost.)

But then the plot thickened…

See, the derivative (or not) argument is an interpretation.  Now, granted, it’s an interpretation that Joomla! and Drupal both stand by, but still, it’s an interpretation, and whether it would stand up in court is the subject of much debate.  However, after a couple WordPress developers (Andy Peatling & Andrew Nacin) started picking through Thesis code, they found lines that were literally copied and pasted from WordPress into Thesis — a clear GPL violation.  That prompted a programmer, the aforementioned Drew Blas, to write a script that compared Thesis source code with WordPress and identified each bit of substantial code that was obviously lifted from core WordPress.  And that lead to the discovery of what has come to be known as the “copy pasta,” a chunk of code deliberately lifted from WordPress that included this comment:

/**
* This function is mostly copy pasta from WP (wp-includes/media.php),
* but with minor alteration to play more nicely with our styling.
**/

This was added by Rick Beckman (aka KingdomGeek) when he was working for DIYThemes, which he acknowledges on Matt’s blog.  Even the liberal “fair use” argument would no longer apply if large chunks of code were lifted from WordPress.  And this throws a major wrench in Thesis’ operation.  Because even if Chris Pearson removes the offending code (which he says he is working on), all previous versions of Thesis are still GPL.  And arguably, any subsequent versions of Thesis would be considered derivative works and therefore the GPL would still apply.  The only way to avoid the issue entirely would be to rewrite all of Thesis.  Good luck with that.

The thing is, Thesis isn’t even all that fantastic.  From a design standpoint it’s okay, but nothing phenomenally groundbreaking.  As a designer who has worked very closely with users, though, I can guarantee that putting a color wheel and allowing your users to choose the colors for their site is a monumentally bad idea (it’s why we don’t do it).  The problem is that all those options, all that unlimited possibility is overwhelming.  It’s why people buy Thesis and then hire a designer to customize it for them.  It’s failing to do its job.  Other themes, or theme frameworks, can do similar things without as much headache: ShiftNews by WPShift has a lot of the same sorts of customization options and Thematic by ThemeShaper has a solid framework upon which to build child themes.  For that matter, we took all these things into account when we were building Museum Themes, and provided ways to allow you to customize your blog design without making it look like this.  It was sort of the point behind Museum One.  Even then, though, we were careful not to put too much stuff so as to overwhelm casual users, and I think that’s Thesis’ main failing.

Honestly, I can’t see Thesis continuing to be a lasting one-trick-pony.  Increasingly, free and other GPL-compatible premium themes are able to match any level of originality or innovation Thesis may once have had.  And if 1.7 (and many previous versions) are GPL from the code that was copied from WordPress, then Chris Pearson’s worst fear may come true — someone re-releasing it for free, protected by the GPL, or else using it as a framework for another competing theme.  Chris Pearson was right about one thing: users don’t (generally) care about the GPL.  But that’s fine, because they don’t have to; the GPL only really applies if you intend to distribute your theme.  Additionally, it gives you permission to modify the code as much as you please (compare that to a typical Microsoft EULA which defines the terms under which you can use the software, and manipulating any core systemic functions or hacking the software to add customization options or additional functionality is expressly prohibited).  However, a look at Matt’s Twitter stream over the days since he and Chris debated on Mixergy gives evidence that people do care about software licenses, and they care if their theme violates the license under which the software it uses was released.  The cat is out of the bag, and there’s no way to shove it back in.  It will be interesting to see how this progresses and what effect it has on WordPress themes in general, and Thesis in particular.

You might also be interested in these:

  1. Gee, there’s a thought…
  2. How to upgrade your Museum Theme to the most current version after you’ve made changes to the files
  3. 12 Free WordPress Themes I Like (and you should, too)

the music industry’s last caress

[audio:LastCaress.mp3]

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.