Inkwell: Authors and Artists

    

>> "do you *really* think that the law should adjust
>> with the demands of popular behavior, or mass belief?"

> Simple answer: yes. We call this democracy, I think.

Actually, that's called "mob rule", or more politely, "Athenian
democracy"-- but it's not the standard we are working from
now.  The American tradition of liberal democracy seeks to
clearly demarcate what the majority can decide, while protecting
the fundamental rights of the individual.  (I understand that
copyright protection is not necessarily a fundamental "right"
under our jurisprudence.)  But why do you think sheer numbers
should be the standard for making the most justifiable
determination?

Also, I want to challenge your assumption that there's any kind
of "majority" of the population who want Napster, to begin with.
Correct me if my figures are wrong, but only 40% of US citizens
are on the Internet, and only 15-25% of them use Napster regularly.
So you're really talking a minority of a minority.  Outside that
group is the majority of Americans, who have a compelling interest
in the future of music, which right now is being shaped without
their knowledge, or approval, or even the means to understand
the debate.  Why do you take demands made by a subset of primarily
white, middle-upper middle class Internet users to be a universal
mandate of the people which we should just accept?

> you have very much misread the way people *feel* when they
> use Napster. It's not about furtively doing something that
> you sense is wrong but you go ahead and do anyway because
> you feel you can get away with it. It really does feel like
> a big global swapmeet in which you get to trade stuff and
> exchange enthusiasms with people who are passionate

The download pattern for Napster seems to contradict the
impression you're trying to convey.  Most of it is Top 40,
mainstream label CDs.  People who are passionate about music
usually have more diverse, eclectic tastes.  But as Courtney
Love recently complained, she can never find the obscure cool
music she really wants.  Are you saying that the majority of
users just happen to be really passionate for top-selling CDs?

And if your main argument is how something "feels", I don't see
how it's very compelling.  I *do* know that most Napster users
tell me the following:  "CDs are too expensive, and why should
I give the record company money, they're greedy bastards anyway."
I don't know how they feel, but I know a rationalization when
I hear one.  If it "feels" like such an open swap meet, why do
Napster users keep saying things like this?
  

    
forgive me as I digress, but wagner wrote and got me thinking immediately...

but only 40% of US citizens
 are on the Internet, and only 15-25% of them use Napster regularly.

And only about 40 percent of the population votes and most elextions are
determiend by less than 10%.  wouldn't it be something if our government
decided to influence their decisions on liberties to assure the swing vote
in most elextions choose them, and if the napster population ended up being
the 'soccer moms' of the next election...  hmmm
  

    
A few things are almost indistputably true in this situation. CD's are
overpriced (as compared to what they would cost in a truly free
market, as opposed to the vertically integrated system that exists).
Most CDs are of interest to listeners because of one or two songs among
the dozen or more in the package. It's easy to rationalize free
file-swapping, because we all know that most artists see little of the
proceeds from the sale of "their" CDs, so it's not seen as ripping off
the artist, as much as giving a nice "up yours" to the greedy record
industry.

Given the above, I tend to think that most people would pay what hey
considered a reasonable price for single songs, if payment and
fulfillment were made simple. 

When the various publishing industries offer something that people
want to buy in a package that is no more and no less than is asked for,
I don't think they'll have a big problem with theft. In fact, as has
been pointed out, the "theft" becomes just another variant of viral
marketing.

One more thing. Consider cable TV vs Internet access. I'd guess that
there are many thousands of "cable thieves" with hacked and illegal
boxes, who are cheerfully paying for Internet access. Cable rams
unwanted content down the subscriber's throat. Internet allows the
consumer to construct his or her own fare... no more, no less.
  

    
It's true that there's almost nothing "indy" available on Napster.  You may
be able to find a rare demo by They Might Be Giants, but that's really very
mainstream.  This will theoretically change, in time, but it's been a year
already.  Napster skews to the material MTV and radio actively foists upon
us, and that's not the leveling of the playing field we were looking for
from the "mp3 revolution."
  

    
I have found much more than "rare demos" by They Might Be Giants. Lots and
lots of live material, for example. The variety of what's available on
Napster now is really quite staggering. People are also putting up stuff
that isn't even available anymore from the labels. Take Mitch Easter's band
Let's Active (an early 80s favorite on the college scene). You can't buy
their EP Afoot or their first full album Cypress anymore, but nearly all the
songs are available via Napster.

But Adam, how would you know, since you say you don't use Napster?
  

    
C'mon Chip.  Don't you know what Angry Coffee is?  

Now, there is a point worth making here, one that Scott raised in
his article, IIRC: if all such rare and live material were released by the
labels and we could buy it, we wouldn't need Napster, right?

The problem with this attitude is that the artist didn't release this
stuff for a reason. The Let's Active is a good example of why p2p networks
are really cool.  But what about all those live tracks?  You, the fan,
will betray the desires of the very artist you claim to respect and love,
by swapping live tracks they deemed unworthy of release.  

To top it all off, you aren't even going to pay them.

But because it's free, and easy, and convenient, and it satisfies your
cravings,therefore it must be ethically sound, right?

This is the twisted logic of the bootlegger.  There's a long,
unremittingly boring topic dedicated to the ethics of taping in the music
conference if you are interested in seeing your argument dissected
further.

Now, I don't want to go there, and I wish you hadn't, but suffice to say
that just because you like it as a music "fan" doesn't help us out of a
situation where the value of music is now $0.

I had a better idea than saying "this is great.  The candy store is
open," which seems to be the extent of your argument. 

Angry Coffee pairs search queries with spotlights on independent, unsigned
artists.  We know that people like you without an ounce of respect for
established artists will go digging for free music, so we've taken it upon
ourselves to feature struggling musicians alongside your queries for Ted
Nugent or whomever. 

I think the p2p revolution is fantastic.  I also think that Napster was a
horrible implementation of a great idea in that there has never been a
mechanism to pay artists, the content providers.  And the belated "Napster
Artist" program, launched well after they were being sued, isn't connected
in any meaningful way to the core product.

Remember, it's a giant fuck you to the artist to download their stuff for
free when they haven't authorized it (if they have, no problem).  I do a
lot of downloading, but I make it a point to buy the CDs too.  I hope you
do the same.
  

    
If musicians don't want people to record bootlegs that's their right. 
However it's an odd argument to say that the music was good enough to
play at a concert but not good enough to record.  If the music's really
no good, maybe the fans should ask for their money back?
  

    
It's not odd at all. What sounds great at a live show may not bear up under
repeated listenings.

Consider these comments from Pete T on Monday's Who show:
"Magic Bus was a dog tonight. None of us can quite work out why we've lost
it. Here and there I played well. Here and there I completely and totally
lost it, bum notes. I almost went blank a couple of times. I didn't have
much fun, but it was a great feeling to land the show in the last analysis
without having to bust a guitar or bleed. ...

I sometimes feel resentful that I have to pull a saggy song (or even a
saggy show) out of its nosedive with some kind of pyrotechnic guitar
solo. I tried a few of those tonight and somehow it never quite
worked. ...

John's bass solo in 5.15 tonight closed with a double plucked arpeggiation
of some kind in a rising chromatic scheme. It was uplifting and clever,
and incredibly funny all at the same time. I've included an mp3 of just
that solo here for study."

http://www.petetownshend.com/press_release_diary_display.cfm?id=1902

At the end, he posted 2 mp3s of a couple of really hot solos.  I
downloaded them, and would happily swap them.

But what of the taped "Magic Bus" from this show?  Sounds like Pete
thought is sucked, and probably doesn't want that version out there.

Some people understand what it means to respect an artist, and others
don't.  I hope this makes it a little more clear.
  

    
David Grisman changed his policy a few years back and now allows taping of
his shows.  He told me the reason: because this band has now been together
long enough to deliver consistently good shows.
  

    
> I do a
> lot of downloading, but I make it a point to buy the CDs too.  I hope you
> do the same.

Well, I explained above that in just about every case I cited I have already
purchased *every* CD by the particular artist. In many cases I paid for the
vinyl too. There is no end to the amount of money that has passed from my
wallet to pay for music -- though lord only knows how much or how little of
it has ended up in any "artist's" pocket. Which is kind of the point here,
and why the whole "don't cheat the artist" line is a massive dodge that lets
media corporations pretend that they are defending artists' rights when they
are really throwing up barricades to innovation and fighting a desperate
rearguard action to defend a doomed business model.

Most live recordings that I have downloaded come from radio broadcasts.
Somehow it seems naive to me for a musician to think "Sure, I'll send this
out on the radio, but it's a one-shot, after that no one will ever listen to
this again!" The musician who desires absolute control over his legacy
should never consent to radio broadcasts and should be sure to frisk all
concertgoers. Most musicians would, I think, be glad to find that people
love their work so much they want to collect alternate versions -- as long
as those fans have already paid for the "authorized" CDs.

As I said I carry no brief for Napster as a company and do not especially
care what happens to it. Yes, their new artist program was an afterthought.
Who cares? Napster the company's fate is very much beside the point.
  

    
Here's a different way of thinking about what's happening today: We have a
set of laws, copyright laws, intended to promote creativity and enrich the
collective culture by assuring that creators retain an interest in their
work and can materially benefit from it. Copyright has limits, too, intended
to make sure that once they expire the public can benefit from the work. Yet
weirdly, as technology and culture have accelerated in recent decades --
meaning, you'd think, that the effective life of copyright shoud dwindle --
the media corporations have exercised their muscles to *lengthen* the
duration of copyright. Tons of stuff that ought to be in the public domain
remains locked up.

Copyright law remains in a constant dialogue with technological change. At
this historical moment technology has far outstripped the law.  My argument
remains simple: As long as the Internet is structured the way it is, and
unless you could somehow manage to radically restructure its architecture
(or shut it down), then massive changes in copyright and intellectual
property are inevitable. The law can marginally affect individual winners
and losers in this situation (by shutting down Napster, say) but it can't
freeze the overall changes.

The changes are not limited to the music industry. They are already very
much affecting my own field of text journalism, and over the next decade
they are likely to crash rather heavily over the movie and TV industries.

This kind of change does not guarantee that a particular company, business
model or way of life will continue. The results can be exciting or sad. We
can encourage the things we find exciting and do our best to preserve the
things we think should not be lost in the flow of change.

Yes, musicians and other artists ought to get paid for their work. I think
if the current industry model did a better job of paying them and of
assuring some greater level of service and choice to the public that there'd
be a lot more public support and sympathy for the record companies as they
struggle to deal with  the waves of change. It is the companies that have
chosen to set this up as an "us against them" conflict with their own
customers. This, it seems to me, is suicidal for them.

In the worst case scenario, the entire music industry collapses in a heap of
red ink , and for some period of time the whole notion of the "professional
musician" evaporates. Since I believe the hunger for music is pretty deeply
ingrained in our species, I don't think music will vanish, it will just go
amateur. Then over time people will devise new ways of supporting the
exceptional talents in their midst -- ways  that don't depend on Universal
or Bertelsmann or Time Warner or whoever seizing a huge cut of the cash.

This does not seem terrible to me (and yes, such a scenario is entirely
possible in my profession as well). Nor is it inevitable. But if the music
industry continues to insist that a business model is a constitutionally
protected right it could force us down that road.

 .
  

    
 You know, while I think that massive change in the recording industry
is inevitable and will hopefully wind up being beneficial to both artists
and customers, I have a real problem with Napster, the company.

 I've written several computer books, and have earned royalties on them
as well.  If someone were to make a photocopy of one of my books and share
it with a friend, I wouldn't have a problem with that, because they'd be
using it for learning.  Some other authors probably would, but I really
don't have a problem with people sharing what I've written.  If someone put
up a copy of my book on their web page, I'd have a problem with the people
distributing it, but not with the people reading it.  
 
 However, if "Bookster" created a piece of software that allowed people
to share computer books relatively anonymously and easily over the Internet,
I'd be first in line to sue them.  While I don't have a problem with 
individuals who want to learn from my books, I have a big problem with a 
company trying to build a business around distributing my creative works
without paying for them.  The guys working at Napster want to get rich by
leveraging the hard work of other people -- stealing from them.  
 
 So, I hope the record companies do put Napster out of business, or they
go out of business for some other reason before too long.  I consider
them to be profiteering thieves.
  

    
It's hard to be a profiteering thief when you have little or no revenue, let
alone profit.
  

    
 But clearly they didn't attract their staff and executives without a plan
to turn Napster into money.  They have many millions of users, I imagine
the stock market would reward them for that if they weren't saddled with
bushels of legal problems.
  

    
Adam, your holier than thou pontificating about fans who don't understand
what it means to "respect" an artist is exactly the "us against them" game
that Scott just labelled suicidal. I'd try a little harder not to sound so
much like the execrable Jack Valenti.
  

    

Nonsense.  Adam took considerable pains to explain how and why
a musician would feel their work isn't being respected by their
"fans".  Try a little harder not to sound like you're saying,
"Don't get above your station, kid."
  

    
To end, type . (a period) on a line by itself
The only nonsense here is Adam's lecture about what kind of fan I am or am
not when he has no fucking idea, his fabrication of strawman arguments that
I haven't made, and his attempt to dismiss any discussion he disagrees with
by using the lamest of lame WELL debate tactics, the old "we already talked
about this in another conference." All of it in a "don't get above your
station, you non-artist" tone.
  

    
Small data point. I just poked around in Napster for songs by Richard
Thompson (an artist on whose CD catalog I have probably spent hundreds of
dollars by now). I noticed a bunch of live recordings under the wry name
"Celtschmerz." Hadn't heard of that; had Thompson put out a live CD? Nope,
not on the commercial music sites. Check Google -- aha! Thompson has set up
a low-altitude operation of some kind selling live CDs to beat out the
bootleggers. Wonderful. I'm sending them my check tomorrow.

I'd have never heard of this music if it weren't for Napster. Now, I could
download some or even most of it, but look, I'm a fan, I want the CD *and* I
want Thompson to get his cut.

I don't believe I'm an anomaly in this. I don't represent everyone but I
don't represent a mere sliver of the public, either.

Rafe, your "Bookster" analogy is pretty good but the critical issue there
is the phrase "building a business." As I understand the Napster story, the
software was originally written because Fanning wanted to make sharing MP3s
easy. The business came later, with the uncle, etc. and later of course the
VCs. As I've said, though, the moment these guys try to "monetize" Napster
they're in trouble.

The tougher question here is, how would you feel about the "Bookster"
scenario if, say, no one was exchanging money or making money, but peopel
were trading your books anyway? That's I think where this becomes painful --
and creators are forced to decide, do I want to fight to defend the old way
and control my products, or can I figure out a way to make the new way work
for me? I don't pretend that this is easy at all.
  

    
 I'd have no problem with people trading my book, in large part because I 
believe that it would increase the sales of the book in the end for me.

 If Macmillan would let me, I'd post my entire book on my web site for 
free.  That strategy has certainly worked very well for Bruce Eckel and 
Philip Greenspun. 

 I know that Napster started out as a free toy, but it's clear to me that
some greedy people are involved now who want Napster to make them rich.
They're just as bad as the record company guys -- both groups are trying
to exploit the artists to line their own pockets.  I can't respect that.
  

    
Scott, I think you've hit on the crux of the matter.  Napster works
because it's easy.  Many of us are indeed ethically conflicted about
downloading music we love when we know the artist isn't getting paid (and
forget about the labels, that's not what bothers anyone for obvious
reasons).  There are a couple of ways around this.

One we've discussed, buying the CD.  I believe that Napster probably does
drive CD sales to a certain extent, perhaps above what they were in a
pre-Napster world although it's presumptuous to cite increased sales over 1
year as the result of Napster alone when there are thousands of variables
(the most popular rapper ever has released 3 records inside 16 months, for
example).  

This model, buying CDs, still gives the money-grubbing jerks a big cut,
but at least some will trickle down to the songwriters and performers.  
Right now, it's the only viable model we've got.

Another is what many of us are working on, a way to use a file-sharing
interface to directly encourage sales, through ye old "click to buy this
CD" or something more creative.  There are tremendous opportunities for
unsigned artists here.  Major-label acts are more problematic because of
the paranoia and lack of education, but they'll see they light.  Many of
them already have.

Question: are the ethical standards of the masses sufficiently high that
they'll buy something when it's *free in the same interface*?  Or will a
subscription model like Emusic's (a good deal messier) be the only way to
create a new revenue stream?
  

    
Do you donate to public radio and TV?  All the stations you listen to?  Each
year? None ever?

Hard to say.
  

    
I'm not sure I understand the question <gail> (rhetorical I assume), but
the public access model does sustain independent radio stations like SF's
KPOO.  However, there's no money there beyong a bare minimum to sustain
operations.  Not exactly the revenue model WEA wants to adopt.

Of course, KPOO is by far the best radio station in SF, but note that it's
(relatively) quite difficult to contribute -- get the address/phone
number, checkbook, stamp, mailbox.

A single click from the service you use daily would be a lot easier.  As I
noted above, ease of use is Napster's sweet spot.
  

    
Yes, that could make a huge difference.
  

    
Gail's question is not rhetorical, particularly if you consider it alongside
Scott's point about his Richard Thompson discovery. Let's suppose you
encourage non-commercial sharing in every way possible as part of building a
fan base, in hopes of attracting enough core fans like Scott who are willing
to spend a buck for something more: a CD, a monthly subscription, a concert
ticket, a t-shirt, or perhaps a copy of the lyric sheet. Ditch the
discussion of whether audiences are sufficiently ethical, because its a red
herring in the end. All you want is more fans. It's not as if unsigned bands
are raking it in from CD and product sales right now anyway. But file-
sharing gives them this incredibly opportunity to reach new fans who might
never have found them, and grow their fans base far beyond the club crowd
who might have discovered them before.

As Scott says, none of this is easy. Worse case, the unsigned band makes no
more money off CDs and t-shirts and lyric sheets than it makes today, which
in most cases is zero. Best case, you build a Dead-like fan base that
despite its ability to tape every single one of your performances without
compensation _still_ buys every last one of your products.

I think journalists and writers worried about Bookster will face a much
harder challenge. The biggest advantage musicians have is the emotional
connection they can make with their art. I don't know many people who have
sex while reading a magazine story, for example.
  

    
I am using online music to advance my career, as Chip describes it above.

I worry some, though, about the likelihood that some significant portion of
the audience won't be willing to pay for my stuff when it is offered.