What is remarkable about the article is it virtually whitewashes the controversy of the past decade with regard to the legality of digital music. In fact, Keith Caulfield from Billboard actually refers to the extinction of the CD as a “natural progression”. For anyone that has followed the music industry over the past 12years this “progression” has been anything but “natural”. Leaving aside the problematic notion that the CD is “dying”, I think it is important to remember that digital downloads were not something that the major record labels were willing to adjust to until they had a store in place where they could remain dominant: iTunes. In 2004, the music industry’s embrace of Steve Jobs’ digital music store was the beginning of an acceptance by the record labels that they had to change or be forgotten.

The problem with fetishizing media formats is that there is obsolescence built into the technology. While the record labels would like to control new media formats in a way where they can always maintain their dominance, consumer electronic companies are always trying to create new products to market to consumers. The mp3 player was not created by the major record labels to give their costumers access to music in a new format, but rather by consumer electronic companies. But in addition to having a new piece of technology, there is always a need for businesses that make money in selling technology to have content to be played on that technology. This is why Steve Jobs and Apple developed the iTunes store after the successful launch of the iPod.

The control that record labels have held over music distribution networks has maintained their power over independent artists and labels. Digital music players and the availability of  online digital music allowed independent artists and labels to compete with the major labels. Easy access to free digital music was/is reprehensible to the major record labels and while they were slow to adapt to digital music, they were quick to work with Steve Jobs to maintain their dominance in production and distribution.

So, yes, the CD may be fading slowly into the land of obsolete technologies; it will be around for quite some time, still. But before we romanticize this “natural progression” from CD to digital, let’s not forget the ugly recent history that has been forced upon us with lawsuits, threats and ISP bans.

In its infancy, the internet was nothing more than a few people with computers connected over some servers that allowed those people to gather information easier. Many of those first users were researchers and librarians trying to figure out how to catalog data over distances (I can’t even begin to imagine using the Dewey Decimal System). One of the first things that these internet pioneers did was they developed Usenet Newsgroups. While the newsgroup has become (for the most part) a thing of the past, its legacy did leave two distinct features of the internet. First, Newsgroups have become more generally known as Blogging (web logging is a descendent of newsgroups) and today people subscribe to blogs with RSS feeds the same way that many people subscribed to newsgroups. Second, Usenet Newsgroups created a way to share files that would soon become known as file-sharing on peer-to-peer (P2P) networks.

It is this second feature that concerns me here (as I write in the medium of the first feature) because file-sharing and P2P networks have provided the most hope and controversy for the music industry. Once programs were developed to facilitate the distribution of files over these networks, it gave users an opportunity to share files with other users that they may never have even seen before. What I would like to focus on here is that the networks and programs allowed users to share files.

Sharing a file is an altogether benign action. Right now, I am writing this in Word and I am saving it as a .doc file. Therefore, the article is both a piece of written work and a digital collection of 1s and 0s. If I were solely writing it on notebook paper, the chances of other people seeing it are slim to none. However, the act of typing it on a computer makes the piece both written content and digital content. In this form, I can easily upload it onto a blog, copy and paste it in another program and email it to colleagues. As soon as it is posted on my blog, people subscribing to this blog as an RSS feed can get a notification about its existence. At some point, I will probably link it on FaceBook by posting it on someone’s “wall”. The 1s and 0s are converted to different formats without me having to do very much to convert it. On the other hand, if I wrote this piece on notebook paper, I would first have to type it before anyone else would be able to read it.

One other place that I could store this file is on a P2P network. Using a generic file-sharing program (let’s call it X2X), I could store this file in a folder that I share with other people using X2X. The file is sitting in a shared folder on my hard drive, but when I am logged into X2X, the file is benignly sitting in my X2X shared folder online. As long as I am logged into X2X, people on the X2X network have the ability to see and download my files at the same time that I can see and download their own files. I knowingly participate in the exchange of files as long as I continue to use the program. There is an underlying agreement between users that they may download files from other users as long as they share files with others; along with that agreement is the understanding that I am allowing other people to use my files. When people download my article as a file, it is no different from me posting it on a blog. People can read it and repost it at will, without my agreement. There is no way for me to control the distribution of this file once it is shared, but this is not distinctly different from if I post it on a blog.

Chances are that this file is not the only file that I have in my X2X shared folder. There may be other articles within that folder along with outlines and works that are not mine at all: there may be articles by colleagues and pieces that I have read. Within the X2X network, I would be sure to find similar types of files in other users’ shared folders. As I find people that have similar interests to me, I benefit greatly from the access to their files as they benefit from my files. Our collective shared files begin to constitute a “creative commons” that allows us to grow. Most of these files are probably accessible online somewhere on the internet, but are scattered all around; however, finding people with similar interests gives each user access to a concentrated source of information.

Let’s assume now that the only place to find this article, along with my other work is within my shared folder on X2X. People get on X2X to search for articles within this collective commons, but have no idea that this article exists. One user searches for a known article that I keep in my shared folder and downloads that article; upon that user’s second search, s/he figures out that we have similar interests and decides to browse my files. Looking through my files s/he finds this article, thinks it’s profound and shares it with others. Through this process, the article becomes well known to X2X users (and beyond if they put it in some other format).

Now I have been dancing around the idea of file-sharing by focusing on .doc files. People have all types of files in their peer-to-peer network shared folders. Media files (videos and music) are by far the most popular items exchanged via P2P networks and also the most controversial. Independent artists (musicians in particular) began to use these vast networks to distribute their files online. These artists could store their recordings in a shared folder along with their music collection. As people browsed an artist’s music collection because of their shared interest in a genre (particularly niche indie genres), those people would find the independent artist’s recorded music. That music would expand into more and more shared folders as users found the music in others’ shared folders: the presence of the artist’s music would increase exponentially.

This use of P2P networks is a great tool for both musicians and music lovers, but the enemy of the music industry. In the late 1990’s and the early 2000’s the music industry, through the Recording Industry Association of America (RIAA), realized that the development of P2P networks would increase cheap competition and have a direct decrease in album sales. The RIAA immediately began suing file-sharing networks beginning with Napster in 2000 for violating parts of the Digital Millennium Copyright Act (DMCA). It is important to note that the DMCA was developed by industries that stood the most to lose from internet technologies.

Lawsuits by the RIAA (and the MPAA) were initially against the P2P networks and later against users of those networks. These lawsuits were filed because it was assumed that the use of P2P networks was inherently illegal. The RIAA did not leave room for users using the network to distribute files legally; the situation described above about me writing this and sharing it with others is not permitted under the RIAA’s logic. It is clear that, for the RIAA, the NRA’s slogan “Guns don’t kill people, people kill people” is pointless – the RIAA could not buy the logic that the technology does not commit the crime, people commit the crime.

There a number of ways to go from here. Lawrence Lessig is fairly insistent that the good of downloading files on P2P programs outweighs the bad, but I’m not sure that argument needs to be made. The technology itself is not illegal; therefore, there is no reason to outlaw the technology itself. In order to understand what is going on with P2P lawsuits, people have to dig deeper. This is what I hope to do from time to time on this blog and in my own research and hopefully the arguments work.

First developed out of a need for composers to get compensated for their works, performance rights are part of a long tradition of copyright. As with all other forms of copyright law, new mediations (e.g. radio, records, compact discs, the internet, etc.) have been paralleled by a scramble for certain actors to maintain power through the use of intellectual property. Many songwriters rely on performance “rights” as a way of earning income for the writing of songs. Sometimes writers allow artists to record or perform songs because they know that they will be paid for the song through these rights.

There has already been controversy over internet radio and performance rights. The RIAA and the major record labels had worked out deals with internet radio stations on compensation for the playing of their songs, but the performance rights organizations (ASCAP, BMI and SESAC) were left out of the deals. After some arbitration, it was settled that the performance rights organizations would get royalties to pay their members for music played via internet radio. This battle was ugly and public; unfortunately, the public doesn’t typically understand the difference between types of royalties and many people feel like they are being ripped off. Historically, however, the record labels would not have been paid this type of royalty and all of the money would be distributed to artists via performance rights organizations. Because this controversy was covered by the news, people got wind of the inter-workings of copyright law. Many users of free internet radio stations were frustrated as the structure of their stations changed and were confused about what was happening to the stations, but they figured that that was the end of discussions of royalties.

Now there is a new issue on the table with performance rights concerning the streaming of TV shows on the internet for free. Many of the writers allowed their songs to be performed on television shows strictly for performance royalties. Since more and more people are watching these shows online, they are now trying to ensure that they are compensated for their work. Unfortunately, this discussion of rights often gets conflated with other royalties being paid and consumers get angry when they here that a player in the music industry is demanding more money. However, without some way to equitably pay writers, you will no longer have your favorite songs played on TV shows. This debate will play itself overtime. The RIAA (and in this case the MPA) will be angry as always because they want the biggest part of any payment. Consumers will be angry because their streaming options will change. And it is likely that the song writers will get the least lucrative part of the deal.

Here’s a broad overview of how the “recording industry” has developed in the United States. First, music has been around for a long time before the existence of the recording industry, but we can trace the history of the recording industry to the Music Publishing Industry. The invention of the printing press allowed composers to claim ownership of their compositions through the application of copyrights. Copyright was a by-product of the development of the printing press and it is important to state that copyright at that time was a qualitatively different legal protection than it is today. Composers wrote music for musicians to perform (as is still the case in certain circumstances today). When music was composed and reprinted by the music publisher, charging a fee was the way that a composer could be compensated for producing a piece of music[1]. Eventually, copyright ensured that the composer and publisher could be compensated for the performance of a piece of music.

When the gramophone was initially developed, the gramophone manufacturers needed to develop a market for the sale of the gramophone. Friedrich Kittler explains in “Gramophone, Film, Typewriter” how the transmediation of media changes not only the way we interact with media, but also how the law and businesses try to maintain power with the invention of new mediations[2]. At first it was not clear what type of auditory commodity would work best for wide sale. Eventually, gramophone manufacturers started recording music to be played on their equipment; this continued through the electric record player of which RCA (Radio Corporation of America) was a developer and became a record producer. Part of this history is the history of the development of an expensive player commodity followed by the sale of a cheaper mediated commodity. The prevalence of high numbers of the mediated commodity makes it worth it for consumers to buy the player and once they have the player, they can continue to consume the mediated commodity. Of course this consumption logic works until a new player is developed, then all of the new mediated commodities need to be in the new format to get consumers to purchase the new player commodity.

The shift from printed music to recorded music is significant beyond the commodity logic because it is also a qualitative shift in the way we perceive the production of music. Recorded music changed what it means to compose, produce, reproduce and perform music, with that came a shift in the way that the judicial system interpreted copyright law. Frequently using legislation to bolster its position, the newly formed recording industry used copyright law to acquire the rights to its recording artists’ music; the acquisition of these rights did not happen immediately and it was a direct result of a fight that occurred between the recording industry and the music publishing industry. In the end, the recording industry won this battle and I am sure that commentators of that time bemoaned it as the downfall of the music industry.

These shifts and conflicts occurred throughout the Twentieth Century as 8-tracks replaced records, compact cassettes replaced 8-tracks, compact discs replaced compact cassettes and finally digital audio files (most frequently mp3s) replaced the CD. Along the way there were unsuccessful technologies that played minor roles in this historical narrative most notably the Digital Audio Tape (DAT) and the minidisc. Over the past decade there has been a debate on the role of digital reproduction of music in relation to copyright law; this debate has once again created a fundamental shift in how the judicial system and society perceive copyright law. This shift began in 1998 when President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law following a unanimous vote in the Senate. Record companies realized the potential impact of digital music on the internet and preempted the judicial system’s interpretation of copyright law by securing legislation in Congress that would enhance their position.

In many ways, the DMCA was the result of lessons learned from the Audio Home Recording Act (AHRA) of 1992. The AHRA was passed at a time when CD burning technology was becoming available to consumers for personal use. Record labels were worried that the new technology would make pirating music easy and in turn ruin the recording industry. What the act did was permit the production of personal CD writing equipment by charging a royalty for all blank CDs and writers sold. The royalties were given to music publishing agencies and more importantly to Record Labels through the RIAA. This means that the major record labels get a percentage of the profits for every blank CD and CD writer sold in the United States regardless of whether the equipment is actually used to copy music. To this day record labels still make money off the sale of CD writing equipment.

The passage of the AHRA was mostly born of a fear stemming from the high quality of digital reproduction. Reproducing music in analog is always accompanied by a decrease in quality. A copy of a copy does not sound like the original and it progressively degrades in quality with each copy along with each play. Digital music, on the other hand, can be continually reproduced with negligible decreases in quality. The fear has been that there will be a declining amount of music purchased in relation to the availability to digital reproduction technology. The development of the internet was seen by major record labels as a distribution network that caused greater fears about digital technology and the digital reproduction of music than compact discs could ever create. Record industry leaders along with the film industry helped develop the DMCA to redefine copyright legislation in a new digital era.

Not long after the passage of the DMCA, the world’s first peer-2-peer network was created to share digital files online as Napster came into existence in 1999. The recording industry fought back at p-2-p networks because they feared that consumers would choose free digital files online over hard media bought at stores. It is at this junction that the RIAA began the latest plea that a new technology would kill the “music industry” by arguing in a sense that “if people are allowed to download music for free, music will cease to exist.” Now I may be overstating the major record labels’ perspective, but it is key to note that I am not saying only the illegal downloading of music will result in the death of music; this argument inherently bemoans the legal downloading of free music, too.

Do you think that music will still be around if the recording industry (the major record labels) go out of business?

[2] (Kittler, 1999)

There are two competing interests in the discourse about downloading copyrighted music on the internet with regard to the ownership of those copyrights. The two interests involved here are those of the major record labels and those of musicians. When I refer to the “major record labels” I am talking about the so-called “Big Four” – Sony Music Entertainment, EMI, Universal and Warner Music Group. In 2003 there were Five Major record labels and they collectively controlled 84.8% of all recorded music in the US[1]; today the Big Four still averages around 85% of all music sold in the US and 75% of the music sold around the world. Even independent record labels are most frequently owned by one of the majors; majors by indie labels, so that the Artist & Repertoire (A&R) departments can stay flexible in niche markets. Musicians are not limited to those artists signed to one of the “Big Four” and statistics are more difficult to collect on who is a professional musician (someone that makes a living playing music). There is also a diverse set of interests among musicians as some musicians benefit from their relationship with the Big Four and others are only exploited by the major record labels.

The Recording Industry Association of America (RIAA) is the major player that claims to represent the interests of the recording industry. It describes its mission the following way:

The Recording Industry Association of America (RIAA) is the trade group that represents the U.S. recording industry. Its mission is to foster a business and legal climate that supports and promotes our members’ creative and financial vitality. Its members are the record companies that comprise the most vibrant national music industry in the world. RIAA members create, manufacture and/or distribute approximately 90% of all legitimate sound recordings produced and sold in the United States.

It does not explicitly make the claim that the RIAA represents the interests of the musicians in the recording industry, but it does allude to representing them by claiming that its members own “approximately 90% of all legitimate sound recordings” (it should also be noted that two years ago, the “about” section of the RIAA’s website included musicians as a group that it represents). In fact, in court cases and when lobbying Congress, the RIAA is much more explicit that they represent the interests of musicians. However, the recording industry does not share the same interests as the musicians that perform the music that they sell.

The claim that the RIAA represents musicians is similar to the representatives of the Auto Industry claiming to represent the interests of auto workers. The United Auto Workers of America (UAW) was created specifically because workers felt that their labor was being exploited by the auto industry. While the auto workers are part of the industry, their labor interests only align with that of the auto industry when it comes down to whether or not the industry will continue to exist (and even then they disagree on the means). There is a musicians union that represents workers called the American Federation of musicians (AFM), but it is not a strong player in the power relations of the recording industry. The union’s general purpose is to help set standard or minimum wages in cities where there is a high percentage of professional musicians, but it should be noted that many musicians avoid the union so their payments can be kept under-the-table.

Working conditions for musicians vary greatly depending on whether or not they are signed to a label, the type of label they are signed to, and the popularity of the musician. Because of the varying conditions and categories of employment for musicians, it is difficult to describe the labor relations of musicians. However, I would like to focus on the most typical contractual arrangement for newly signed artists on the major record labels and their affiliates. On more than one occasion this relationship has been described as that of a sharecropper. A record contract creates a type of loan between the label and the artist. The artist must pay for the recording, production, manufacture, distribution, publicity and still find money to pay the musicians in the contract out of a set sum of money; all of the money loaned in that contract must in turn be paid back to the record labels. Here I am going to skip some of the details of these contracts, but I want to point out that the money that musicians get to pay back the loan is a small percentage of the sale of an album. Other players in the contract (the label, producers, etc.) get money from a separate percentage of album sales in addition to what the musicians owe each entity. What this means is that while the artists are trying to pay back the labels, everyone is already getting a cut of the profits. Some musicians end-up making millions of dollars, but they are an extreme minority and still maintain a position of labor in relation to record labels; however, the typical arrangement of musicians never allows them to fully payback the record labels. What I hope is clear at this point is that musicians are labor even though we may not always think of them as “working class”.

Lessig, L. (2004). Free culture: The Nature and Future of Creativity. New York: Penguin Press.

The Recording Industry Association of America (RIAA) has been filing lawsuits against “pirates” (aka music file-sharers) since 2003, but few people have tried to fight them. They sue users for an absurd amount of money for each song that they upload and these people usually have uploaded songs in the 1000s. In fact no case has gone to trial . . . until now. A jury of your “peers” found Jammie Thomas-Rasset guilty of willfully violating copyright law – cost: $1.92 million! You read that right, $1,920,000 or $80,000 per song and they convicted her of sharing 24 songs.

Since a jury has finally found a user guilty of “pirating” music on the internet, precedent has now been set for more lawsuits. Until now, the general practice of the RIAA was to sue people uploading/downloading music for an exorbitant amount of money and settle out of court. The settlements were calculated by figuring out how much money the person (or parents in the case of minors) was worth and the RIAA sues for that amount of money. People have been encouraged to settle because the RIAA has a virtually limitless amount of money to tie the defendants up in court. Since most people do not have the cash to defend themselves against a powerful trade industry association, defendants quickly settle after being sued.

Here’s a list of songs that Thomas-Rasset was charged for pirating. Of course, the RIAA contends that the music is being stolen from the artists on that list. The question becomes: how much money of the $1.92 million is each artist getting? (hint: the answer is none) How do they determine which artist gets more money? Or, Does the RIAA just get to keep the money to sue more music listeners? Does the money go to the Big Four Record Labels?

When most people think of record contracts and “getting signed”, they think of big name artists making millions of dollars, but a typical record contract creates exploitation similar to that of a share-cropper. After artists get “signed”, they are given a set amount of money as part of the contract to make an album; however, what most artists miss is that is the money that they get for everything (recording, producing, promotion, salaries, etc.) and it must be paid back to the label because it is a loan. That loan is paid off through the artists’ royalties on the sale of recordings while the record labels (and everyone else for that matter) are gaining their cut of the album sales. A band can generally not make a second album until it can sufficiently pay off the loan for the first album (or at least demonstrate that it can with the next album). For a great explanation of this process check-out Jacob Slitcher’s “So You Want to be a Rock & Roll Star“. Slitcher, the drummer for Semisonic, explains the contract details of his band and the missteps that the group made along the way. While Slitcher explains the problems with record contracts and flash-in-the-pan bands, there’s not a complete discussion of why these contracts exist.

You could argue that every artist/band knows what they are getting into when they sign the contract; if they don’t, then that is their fault for not reading and understanding the contract. However, this argument seems to miss the point. When the label executives want an artist to succeed, they make sure that the artist has the full backing of the label’s promotional tools. The vast majority of artists do not have this type of backing and without that backing they are unable to garner the attention to sell enough albums to fulfill their contracts. The artist is then contractually bound to that label and is unable to make music independently or for another label. In some cases artists are able to get out of their contracts and make better deals (i.e. Wilco), but this is quite rare. The result is a large number of artists signed to a label that are unable to produce new music.

On another level it makes absolute business sense to have artists signed to a label without an opportunity to succeed; this is a way of eliminating competition. Frequently, when an artist is being courted by one record label, they are offered record contracts from multiple labels. The interest generated by one label puts an artist in demand by the recording industry. That interest is not necessarily for the labels to profit from the artists, but more often tends to be a desire to control the market. If an artist is signed by a label competitor, gets heavily promoted and succeeds, then the other labels have to compete with that artist’s sales. But if another label can sign that artist and place them at the bottom of the list, the label can continue to go with their favorite cash-cow artists and ignore their newly signed artist. The competition is effectively killed. By signing the artist, the label is also making it so that the label’s artists do not have to compete with independent artists on the scene because over time the artist will fade into oblivion.

With new recording and distribution technologies there are options for independent artists to succeed by avoiding record contracts, but even these opportunities are fading with the increased interest that record labels have with those technologies. More on this some other time.

Well needless to say, I got some insight into why this is taking place from a girl at the bar. My friends and I were talking to this girl and she was talking about how much she likes the bar, but that “the band was crappy”. I tried to get out of her why she didn’t like the band and what kind of music that she does like. She was insistent that the band sucked, but couldn’t describe to me what kind of music she listens to. She identified that a cover band would fit well with Whitlow’s, something that is probably true, but it is well worth $5 to have DJ Williams as background music over a cover band. It didn’t seem like she had any particular appreciation for anything other than what she is told is “popular”.

Everyone’s entitled to an opinion about music, no complaints about that, but it’s frustrating when people can’t explain why they don’t like something. To say a band sucks, but be unable to articulate why the bands sucks makes no sense. There is a difference between not liking a band and the band “sucking”. Often times I can’t stand a band, but have to admit that they are pretty good. However it is annoying to hear people say that a band “sucks” when they just don’t get it. What do you think?

Now that may not be a problem by itself because one could only expect companies to protect their profits. It is even the case that artists are part of those record labels through their contracts and it may be in their interest to maintain the power of the record labels. However, it is also the case that those very record contracts turn the role of the musician into something that parallels the life of a sharecropper (more on this in another post on another day). In this way it is difficult for the RIAA to argue that they are looking out for the interests of the musicians because if they were really concerned about the musicians, then they would be helping them to have less exploitative contracts.

This is the context that we should approach the idea of the RIAA filing lawsuits against people who “illegally” download music. As the RIAA always resorts back to the artists to protect their interests, we should always understand that it is industry itself exploiting musicians and not their fans. Keep in mind that without fans, there would be no music. One blog, called Recording Industry vs The People, is keeping track of all of the litigation presently in the courts where the RIAA is involved in suing fans and ISPs. Check out their site, it is great way to stay in the know of the legal climate of digital music.