YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.
German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.
The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:
“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”
While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.
A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.
The recording is old news. Last century. Dead. The Access versus Ownership debate should have finished 10 years ago, but we're still bickering. Access models (eg. streaming) are not supposed to replace Ownership models. They're supposed to power a new reality, a new age for the Music business, in which the record industry possibly has no place.
"The Music industry" has become synonymous for the recording industry, just as it was synonymous for sheet music publishers prior to the rise of the recording companies. With new technology, come new companies, and the old companies move into the background. The new Music industry will likely not consist of those that depend on the recording (eg. major labels, or even Spotify), but those that apply technology to change what it means to listen to or interact with Music, just as the recording did in the 20th century.
Even the creative process will have to change.
Prior to the invention of the record, Music was far more participative than it has become throughout the age of mass media and mass consumption. Back then, if you wanted to hear your favourite song, you better know how to play an instrument, or have a member of the household who sings well, or you're simply not going to hear it. That sounds extremely restrictive given our current reality, but it also gave Music certain characteristics that made it richer:
Music was participative
Music was mostly a social experience
Music was more intimate
Music sounded a little bit different every time
Music belonged to everyone
I believe these are natural characteristics of Music, that got temporarily pushed into the background in the age of Mass Media and Western individualism. Entertainment and Culture became passive, and the ownership of Culture became less ambiguous, economically. A Creating Class arose, and a Consuming Class. The companies selling the output of the Creating Class benefited from the passiveness of the Consuming Class, because you couldn't consume high margin products while you create.
The KLF's Bill Drummond about Recorded Music
The KLF's Bill Drummond about what the recording took away from Music. From 1:23. Quote below.
"As the technology to record music evolved through the twentieth century, it sucked in and seduced every form of music around the world. They all wanted to become recorded music. They all wanted to become this thing that could be bought and sold. And that narrowed the parameters of what music could do and be. And it took away from music a big part of what can make music powerful, which is about music being about time, place, and occasion."
"Until 100 years ago, every musical event was unique: music was ephemeral and unrepeatable and even classical scoring couldn't guarantee precise duplication. Then came the gramophone record, which captured particular performances and made it possible to hear them identically over and over again. […] I think it's possible that our grandchildren will look at us in wonder and say: "You mean you used to listen to exactly the same thing over and over again?""
The recording is not the end of the line for Music. Every medium is a transition to the next medium.
Most people call performed music "live music" —
some people call recorded music "dead music"
The Media evolved and spawned Computers, the Internet, Video Games. The latter a highly Interactive example of Culture that went on to give birth to MMORPGs, where large Communities of players Interact and define their own Meaning, participatively. A particularly good example of the aforementioned elements coming together is Minecraft, a world-creating game where players work together to build whatever they can dream of. Deadmau5 uses this to enter a digital world of fan art and interact with his fanbase. Imagine what that's going to look like with the unstoppable momentum Virtual Reality currently seems to have. The Consuming Class has become the Creating Class: Consumption and Creation are becoming, in part, synonymous.
Why is Music still static by default?
Why am I not being offered more ways to interact with Music?
Look at the gaming industry. It's a 1,000 times easier to get someone to pay to unlock a 'special ability' than it is to sell them a piece of content.
Intimacy and Immediacy
The old Music industry is not interested in creating Intimacy. It's hard to scale. The dominance of the recording industry's model depends on hundreds of thousands of well-timed sales, and a long-tail that provides income until 70 years after the death of the Creator.
Yet the fact that we carry computers in our pockets that are more powerful than the PCs on our desks a few years ago, and always connected to the Internet, offers amazing opportunities for Intimacy and Immediacy, ones that fans are happy to pay for. It means that Kevin Kelly's theory of a 1,000 True Fans will become increasingly easy to apply for a growing number of Creators.
The rise of Intimacy and Immediacy will benefit those Creators who work with small teams, who are open about their creative process, and involve their fanbase early on in this process. This enables them to secure funds through crowdfunding, as opposed to trying to secure investment from large corporations, whether recording companies or brands.
One can create dynamics of social competition within a fanbase. Who can recruit the most new fans, or active members? Who are the most valuable contributors to the Creator's wiki? Who spend the most money on merch and who have the most complete collection? The ones that rank highest, get access to perks. A weekly 1 hour video chat with the top 10, weekly 10 minute preview of what you're working on for the top 50, 20% discount on merchandise for the top 200, etc.
An app that has a great idea for how to get people to actively discover new Music, engage with it, and feel part of the artist's success is Tradiio. It gamifies Music discovery and lets users invest virtual coins in songs they believe in. This helps artists rise to prominence on the platform and earn rewards. If this platform evolves from a reward-based game, to a real economy where users can purchase coins and artists can cash out, it would be a good example of the type of company the new Music industry will be made up of. Just to mention some other exemplary companies for music's future: look at Smule and Sonic Emotion.
More on Games
The Gaming industry got into the same mess, at the same time, that the Music industry got into, brought about by the fact that what they thought was their product could suddenly be communicated through networks at zero cost. A whole new Gaming industry emerged with the arrival of connected devices: smartphones. Instead of charging money for the game, they made the game free to play and highly social, and instead charged for a limited set of actions.
Treat money-poor, time-rich fans as well as the money-rich, time-poor, because it's the former that provide value for the latter.
Music needs a new format that's feature-oriented, rather than content-focused. The content remains central to the experience, but the interaction around the content is what brings in the money. Likewise, playback of recorded music will remain important in the future, but perhaps not as the part of the industry that rakes in the most important part of Creators' incomes.
There are countless examples of companies pioneering the future of Music. From aforementioned Tradiio, to ones started by game developers, Music business serial entrepreneurs, and artists themselves. First let's start with an example from another part of the entertainment industry.
"The software will read your emotional reactions to the show in real time. Should your mouth turn down a second too long or your eyes squeeze shut in fright, the plot will speed along. But if they grow large and hold your interest, the program will draw out the suspense."
Imagine applying that to music… Some companies are already closing in on that.
Example: Inception, by Hans Zimmer and RjDj
Music producer and film composer Hans Zimmer collaborated on an app for the Inception movie, with RjDj, a company that specializes in Context Aware Music and Augmented music, founded by one of the co-founders of last.fm, Michael Breidenbruecker. Hans Zimmer on the project:
"There's a thing I've been searching for and I've been working on forever now, is a way to get beyond recorded music. To get beyond 'you just download a piece of music and it's just always the same'."
The application they made draws information from the world around the user, and transforms it into fantastic music. It seems as if you're being immersed in dreamlike worlds, as happens in the movie.
They continued their collaboration and made another app for The Dark Knight Rises. RjDj also created a Reactive Music game called Dimensions, which owes its name to the trippy effects of the Augmented Music that make it feel like you've just crossed into another dimension. The game is free-to-play, and offers in-app purchases to unlock new experiences or further augment existing ones.
I asked two of the people behind RjDj whether people are ready for adaptive music. This is what they had to say.
"I think many of them are ready. Apps like Inception or Dark Night Rises show that people are really into this sonic experience. The problem is how this is presented packaged. I can tell you from experience that not many people hear the difference between 5 hours of generative music and 5 hours recorded music. So really... no one cares if your music changes all the time through an algorithm and never sounds the same or if [it] is a preproduced track. Music has to have a reason why it is dynamic and not linear... that's why we sync it to real life."
"I think Inception especially proved that if the experience is delivered in a way that makes sense, perhaps within a bigger conceptual framework, then millions of people can understand it and really like it.
As for people understanding the depths and details of how reactive music changes. It is very very easy to lose a huge part of the audience here. I think its fair to say that only musicologists and very serious music listeners could pick out the ways in which detailed generative music is changing for instance. Making a reactive music experience meaningful requires that the listener can tangibly feel that the change in the music is linked to his / her activity or life in some direct and hopefully emotionally powerful way.
Often making linear music is about manipulating the emotional state of the listener into particular states of mind over time for dramatic effect. Reactive music poses a different set of possibilities - what if the music is manipulated by them / their emotional state? As a composer this is totally different - its like using a sniper rifle instead of a shotgun - you can make your music hit exactly the right spot for the moment."
Adaptive soundtracks are actually quite common in games, where the Music transforms depending on the player's absolute and relative position (it's called Dynamic Music). Some developers are chucking all the other game elements aside to focus fully on that.
Proteus has been described as a non-game. The game (or 'game') was developed by one developer and one sound designer, and places you on a mystical island. There's nothing there to kill, no need to score points, and you can't die. All you have to do is to wander around the island to discover new areas and to enjoy the way objects around you influence the soundtrack. This is the literal embodiment of the phrase 'soundscape'. The changing seasons, different weather conditions, time of day, and varying ecosystems all have an impact on the Music.
I asked David Kanaga, the game's sound designer, whether this is something anyone could do, in order to understand whether this could become a more mainstream medium for Music:
"Yes, anyone could do it. It's maybe even more natural than writing static music in a way. That said, very few people are doing it, and maybe it takes years of UNLEARNING, which maybe means everything needs to be played again, to stop fixating on what's successful and beautiful in recorded music, in Sgt. Peppers and Pet Sounds, to find the play aspect of those and to move on, to stop admiring recordings.. improvise only, this is the tactic that i've been practicing myself to try this unlearning.. no serious learning is needed, really, but the UNLEARNING is totally necessary."
Example: Biophilia, by Björk
In recent years many artists have taken to releasing albums as apps. Björk had a particularly interesting take on it, releasing her album as a 3 dimensional galaxy that can be navigated and interacted with. The app even became part of MoMa’s collection.
Through the use of in-app purchases, the user can unlock new parts of the galaxy, which provide new Music to Interact with.
Example: Don't Be Scared LP, by DJ Vadim
Ninja Tune veteran DJ Vadim released an 'immersive album', which allows users to interact with different elements of the song, recomposing it according to their own wishes. What better way to create a sense of Intimacy between your fans and your Music.
Example: Central Park (Listen to the Light), by BLUEBRAIN
Then there's Bluebrain, a musical duo that produced their own apps, location-aware albums, one of which can only be used in New York's Central Park. In a way it's similar to Proteus, except in this case, the soundscape is mapped to physical locations rather than virtual.
Recently a new music startup by one of the creators of Google Maps started making waves: Weav. Weav's aim is to simply make music elastic. Unlike Spotify's new feature which picks songs that match your tempo while running, songs on Weav's platform will actually adjust to your pace. The team created tools for musicians to create dynamic music: you don't just write the song, you also program rules for it to recompose itself and adjust to different tempos. Co-founder Lars Rasmussen:
"We believe that as our lives become increasingly digital, and as our increasingly powerful mobile devices play greater and greater roles in our lives, having a song that can change and adapt -- in real time -- to what you are doing will become increasingly important. And delightful. This is why we built Weav."
If you're waiting for disruption in the music industry, don't look at the big platforms like iTunes or Spotify. They belong in the Age of the Recording.
Look at platforms that offer actual Interactivity, Immediacy, Intimacy, and Involvement. Now more than ever can Creators help give shape to future formats of Music, and to new ways to connect the listener to the Music.
Imagine Music in the Age of the Internet of Things.
Music may be static, but it doesn't have to be. And the relation between Creator and Fan certainly shouldn't be.
I'm going to do something crazy and generally not advised on the internet: I'm going to try to make a nuanced argument that cannot be summarized just in the title alone. I fully expect that some will not read through the details, but please, just ignore them in the comments and try to focus on the full argument presented here.
Let me start out this post by noting a key thing: from the beginning, it was stupid that Apple had negotiated a deal with record labels in which copyright holders would not be compensated with royalties for the three-month "trial period" of Apple's new streaming music program. It clearly should have agreed to pay the royalties, and it was a really short-sighted move to push for a deal without royalties. It was always going to come back to haunt the company. Second, while I know some people like to attack Swift for a variety of reasons, I actually think she's an incredibly savvy music person, who has built a tremendously successful career, often by maintaining control on her own and not giving it up to the major labels. That's fantastic. But all of that doesn't mean I think what happened this weekend was a good thing (remember: nuanced argument, please read on).
Of course, as you've probably heard, on Sunday, pop star Taylor Swift wrote an "open letter" to Apple on her Tumblr blog about how ridiculous this was, and how she wouldn't allow her latest album to stream on the service because of this -- even though she supports Apple's "no free tier" stance. There's a lot to comment on about her piece but, no matter what, it was effective. Late on Sunday, Apple's Eddy Cue tweeted Apple's capitulation:
And... the internet went kind of wild. The fact that Taylor Swift wrote a blog post that made Apple -- probably the richest and most powerful company in the world -- back down within a day (on a weekend, no less), does have a sort of populist appeal to it. People started jokingly suggesting that Swift should weigh in on politics, the Middle East and much, much more.
Thought pieces were written by-the-dozen about how Swift is the "most powerful woman/person in music/tech." No, really:
And that's just the first ones I found in a quick Google search. There are more.
But here's the problem with all of this: it's hogwash, meaningless blather that doesn't change a thing and will have no lasting impact. If anything, the lasting impact may be negative, not positive for artists. And, remember, I actually agree with the overall point that Apple's original decision was the wrong one, and think the company made the right decision to reverse course.
But there are three big problems with the rush to celebrate Swift as the new savior of the music industry over this. First her arguments for why are misleading and not very helpful. Second the overall impact of this move will be minimal to musicians (and other creative types). Third, it will give a false sense of hope to those who rely on obsolete business models, rather than innovating.
Let's break down all three. First: her arguments are kind of useless. Here's the key one, which got lots of people excited:
This is not about me. Thankfully I am on my fifth album and can support myself, my band, crew, and entire management team by playing live shows. This is about the new artist or band that has just released their first single and will not be paid for its success. This is about the young songwriter who just got his or her first cut and thought that the royalties from that would get them out of debt. This is about the producer who works tirelessly to innovate and create, just like the innovators and creators at Apple are pioneering in their field…but will not get paid for a quarter of a year’s worth of plays on his or her songs.
It's very touching. And it's almost entirely hogwash for a variety of reasons. First, if your album is a success, there are all sorts of ways to make money beyond the royalties from Apple Music's streaming service. Swift herself kind of admits this in her first sentence in which she notes that she makes a ton of money playing live shows. And why does she make that much money live? Well, as Tom Conrad rightly points out, her career was built on terrestrial radio play -- which is a free service (the kind that Swift has attacked Spotify over) and which doesn't pay the performers anything at all in the US. You can (and many do!) argue that the law in the US should change on this, but it's the way things are today, and Swift is living proof that being a part of a free service that doesn't pay performance royalties certainly doesn't mean that you end up suffering. In fact, it can lead to an immensely successful and profitable career... like Swift's.
But that brings us to the second problem with that paragraph, which is that for most musicians, this doesn't much matter anyway. That's because the industry's biggest secret, which it always tries to hide from these debates, is that the vast majority of musicians basically make absolutely nothing in royalties. This is due to a combination of factors, starting with the fact that if you're signed to a label, the label is likely keeping nearly everything you get from streaming. When Eddy Cue says "Apple will always make sure that artist [sic] are paid" he's lying. They may make sure the copyright holder gets paid, but that's frequently not the artist.
And, related to this, is the other dirty secret: most musicians don't have a big enough fanbase to generate enough revenue. Most musicians don't make a living, period. That has always been the case. The supporters of the old system like to try to slide this fact under the rug and they do some creative counting, where they only look at the stats of those who have made careers out of music, and they leave out the vast majority who fail. The vast, vast, vast majority of musicians don't make a living, because the music business is tough. It's tough to get attention. It's tough to make good music. It's tough to make money. Apple paying for streaming really only addresses a tiny, tiny, tiny bit of that last one. No musician is going to make it or not based on getting paid in this three-month trial. If they're getting enough plays to matter, then they have other ways to make revenue.
Three months is a long time to go unpaid, and it is unfair to ask anyone to work for nothing. I say this with love, reverence, and admiration for everything else Apple has done. I hope that soon I can join them in the progression towards a streaming model that seems fair to those who create this music. I think this could be the platform that gets it right.
Three months is a long time to go unpaid. But not getting paid by Apple Music does not mean "going unpaid." It just means one small revenue stream is limited while it aims to get up to speed. And, again, Swift herself proves this via the fact that her songs play all the time on the radio — for free, but still helping her get paid. And, even though she can pull it down, she's left her streaming music on YouTube. Furthermore, as others pointed out, Swift herself is a bit of a hypocrite here. She puts ridiculous limits on photographers who are on assignment to photograph her shows, such that it often means they have to put in the work and not get paid -- even as she gets to use their photographs forever. If she's really so concerned about creative types "going unpaid," shouldn't she be paying those photographers for their works?
As for the second point above: the overall impact of this move will be minimal to musicians (and other creative types). As already discussed in point one, for most musicians, this isn't going to move the needle one way or the other. Any musician out there relying on the royalties from Apple Music to make or break their musical career has no musical career. Perhaps it's possible that there are one or two artists at the margin for whom this is helpful, but for the vast majority of artists, this isn't going to make a big difference at all. Additionally, while Apple has said that it will now pay during the trial period, it didn't actually say how much it will pay. Yes, for struggling artists any revenue helps, but trust me, when the first royalty checks from Apple start coming in, I can guarantee there will be musicians complaining online about how little they get. Those stories always get coverage. They'll happen again.
And, of course, for label-affiliated artists, much of it will go to the label anyway, and the artist won't see any of it.
Finally, onto the third, and most concerning point: it will give a false sense of hope to those who rely on obsolete business models, rather than innovating. We're already seeing this in the reverence and adoration being showered on Swift for her blog post, despite its questionable premises -- but more for its impact. And musicians are celebrating this, despite the fact it won't move the needle for them one way or the other. And that's really unfortunate, because here's another chance to do things right by focusing on business models that let them connect directly to fans and give them a reason to buy something. Demanding others pay you money is no substitute for convincing others to willingly pay. One is sustainable, one is not.
But because of this "success," people will still cling to the false notion that the "solution" to content creators' failure to build their own successful business model is to demand that other successful companies give them money. And this goes way beyond music as well. Already, you see people like Jeremy Olshan, Marketwatch's Editor-in-Chief, saying that "journalism needs a Taylor Swift to save content from getting... devalued."
This is wrong on so many levels, but that's another post for another day. But this notion of "a savior" magically swooping in and reviving business models that aren't working any more, based on sheer will, is a myth. And it's a dangerous myth because it gets people focusing on that rather than implementing sustainable business models and creating great content. There is no savior for music. There is no savior for journalism. There is no savior for movies. No talk about "fairness" or "fair compensation" or "ethical compensation" is going to change fundamental economics. Most content creators fail out of making a career of it, and if you're going to succeed, praying for a savior, rather than taking steps to ensure a competent business model, isn't likely to be particularly productive.
To conclude (with nuance baked in): So, again, despite all of this, I think Apple made the wrong move initially, and the right move on Sunday night. However, Taylor Swift's reasoning was silly (even if I think she's a great success story who has built up a tremendous career without ceding much control), and the impact of all this will be basically nil for almost every single artist. But, worst of all, this whole episode reinforces this savior concept, and the false belief that because some companies are successful, while some content creators are not, a savior should just demand "fair compensation" and money will magically rain down upon the creative class. It doesn't work that way. It's never worked that way. And nothing in what happened over the weekend with Swift will change that. If anything, it only serves to distract people from focusing on the business models that do work.
It seems like every presidential election cycle, which comes around far too often and lasts for far too long for my taste, there inevitably ends up being some kind of row between some musicians and some politicians over music used at campaign events. The targets of these disputes tend to be Republican candidates, due to the political demographics of musicians as a general thing, but Democrats have been targeted as well. And, as we've mentioned in the past, other than creating a stir in the media and hoping the target campaign relents, there's roughly shit-all these musicians can do about it. But that stir can often times be enough, especially if the musician uses the opportunity to pimp a rival candidate.
Like Bernie Sanders, for example. Apparently when walking ego Donald Trump decided that he was going to announce his candidacy for President of these United States, his campaign decided to use Neil Young's "Rockin' in the Free World" at the event. Neil not only wasn't pleased, but he used the opportunity to boost the candidate he does endorse.
"Donald Trump was not authorized to use 'Rockin' In The Free World' in his presidential candidacy announcement," said Young's manager in a statement. "Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States Of America."
As it turned out, as it usually does, Trump was authorized to use Young's music through an ASCAP license. That said, maybe it's time politicians learned to take the extra step and clear things with musicians before using their music, if for no other reason than to protect against the backlash becoming an advertisement for a rival campaign. Campaigns are very much like brands, after all, and the last thing a brand wants to do is get a competitor's name in circulation. That's got to be doubly so when the rival "brand" is someone like Bernie Sanders who, think whatever you like of him, is starving for more name-recognition on the national level. A couple of simple phone calls from the campaign office would likely inoculate against this sort of thing happening, where now every quote from Young on this dust-up mentions Young's support of Sanders.
A press secretary for the real estate mogul said Wednesday that Trump would respect the wishes of Neil Young and no longer use "Rockin' In the Free World," which Trump featured Tuesday during his announcement that he was seeking the Republican Party's nomination for president. Trump press secretary Hope Hicks said Wednesday that "despite Neil's differing political views, Mr. Trump likes Neil very much."
It's a good way to spin the ending of this story for Trump's team, appearing so reasonable and agreeable to Young's antics, which come off looking petty. Still, no reason to let your campaign's music choice give the artist an opportunity to pimp Bernie Sanders. There are enough conservative musicians out there making music.
The OWOW devices all look pretty cool, even if they aren't all revolutionary. One essentially serves as a theremin, one as a tiny drum pad, two as neat handheld motion controllers, and the most innovative of the lot: a scanner that converts lines you draw freehand on paper into music. All of them are extremely compact, and the scanner is (to my knowledge) entirely unique. None are standalone instruments, though — they serve as controllers for digital music software. But unlike the aforementioned crossfader, these devices are designed for maximum compatibility with everything in that world (they appear to use MIDI-over-USB) rather than being tied down to a proprietary, platform-specific app. When combined with studio software like Reason or Ableton, these might be very powerful and would at least be a lot of fun.
But perhaps the most interesting thing about OWOW is the choice to offer two versions of the devices: one full formed with a sleek aluminum casing, and one at a lower price that is just the raw circuit board on its own. The open circuit will work just fine by itself (and many aficionados of synthesizers and other gear are happy to work with some exposed boards around), and the designers are also supplying free schematics for 3D printing your own casing. The OWOW instruments, like all such devices, aren't cheap — and the DIY offering is a great way to help out musicians operating on a budget and support the maker-musician community.
Funky-looking little high-tech MIDI controllers actually come along quite often, and only a handful turn out to be truly useful. Based on the video and the norm for such controllers, there's a good chance there will be some responsiveness issues, but whether these will be "occasionally annoying" or "crippling" is uncertain. With a new digital music device like this, you can never be entirely sure whether it's a tool or a toy until you've tried it out yourself. It remains to be seen whether some or all of the OWOW instruments are really worth the price — but, so far, they are ticking all the boxes and then some.
There's one other thing worth noting about the OWOW: a creative approach to Kickstarter fundraising that I've never seen before. While most projects for higher-price devices like this fill out their lower backer tiers with stickers and T-shirts and other secondary gear for people who want to support but not buy, OWOW is offering up a five-euro mobile game for iOS and Android. The hook? The player with the top score in the mobile game at the end of the campaign will get a complete set of all five instruments for free. That strikes me as a fantastic way to engage backers and offer low-budget supporters a good reason to buy, and I won't be surprised if that tactic starts to catch on in the world of crowdfunding.
Oh no! The sky is falling! Piracy is decimating musicians!
No, it's not. My latest law review article rebuts these cries and shows how new technologies have allowed musicians to participate in every step of the process of creating, developing, and marketing music.
The Recording Industry Association of America (RIAA) has claimed that piracy is "too benign of a term to adequately describe the toll that music theft" takes on musicians. And it has claimed that "there are fewer people trying to make money as musicians today" and that, in 2012, "the number of people who . . . describe themselves as musicians has declined since 1999 by 41 percent."
Although such numbers sound dire, I explain that the 41 percent figure is vastly overstated. Recalculating the figures for Ars Technica, Matthew Lasar found that the decline was only 8.4 percent. The RIAA's response was that it had not compared data between years, but rather had "looked at MONTHLY data: one month in a year vs. another month a year."
Of course, such an exercise allows one to cherry-pick data to achieve desired results. It is no surprise, then, that the RIAA conceded that "different months yield different figures." And, as Mike Masnick pointed out, monthly data "fluctuates pretty drastically" (for example, July figures might be higher because of more weddings).
The remainder of the article provides an overview of tools available to musicians.
The first step in the production process is creation. There are numerous programs that allow users to create their own music, such as Logic Pro X, Cubase, and Pro Tools 11. The most well-known, GarageBand, lets users assemble as many as 32 tracks of instruments such as drum beats, synthesizer riffs, and guitar sounds.
Next comes distribution. Twitter and YouTube are two prominent examples. By shrinking the gap between bands and their fans, Twitter has offered a platform for musicians to connect with their followers. Bearstronaut, for example, used Twitter to release a new single and gain more followers by using a "Tweet for a Track," by which fans retweet a song to their followers and get the single in return.
Musicians also can do their own marketing. Bandcamp provides musicians with "a rock-solid platform for selling your music and merchandise" and offers "up-to-the-instant stats system [that] reveals who's linking to you, where your music is embedded, which tracks are most and least popular, what's being downloaded and when, [and] which search engine terms are sending traffic your way." Other examples include the Coalition of Artists and Stakeholders (CASH) (an open-source, nonprofit organization "focused on educating and empowering artists and their fans") and ReverbNation's Music for Good Program (which allows artists to split their profits with a charity).
Next comes royalty collection. CD Baby Pro offers worldwide music distribution and endeavors to "give independent artists the same royalty collection resources that major label artists" use. TuneCore distributes music to dozens of online services, sends royalties to participating musicians, and provides "detailed sales and daily iTunes, Spotify, and Amazon Music reports."
To carry out each of the above steps, musicians can raise funds from various services. The most prominent is Kickstarter, which, as of this writing, has raised $1.7 billion from more than 8 million people to fund 84,000 creative projects. Indiegogo has looser guidelines that "essentially allow for the crowdfunding of anything—projects, trips, charities, and personal wishes." And Patreon allows users to offer ongoing support for continued work and gives content creators the ability to set rewards such as "giv[ing] out their personal cell numbers, . . . play[ing] an online game with patrons, or even provid[ing] behind-the-scenes production diaries."
In recent years, touring has become an important source of revenue. Market leader Songkickaggregates concert information, allows users to receive notifications of when bands will be in town, and includes a database of fans' accounts of their concert experiences. Bandsintownpresents the bands users might be interested in as word bubbles, with the boldness level of the name indicating the app's confidence that the user will like the group. Timbreallows users to enter their location and receive a list of bands playing in their area.
In addition to all these tools, musicians can forge direct connections with fans. Our own Mike Masnick, in this and other fora, has been a pioneer in articulating a business model based on connecting with fans and giving them a reason to buy. Just a few examples:
Amanda Palmer, who in three experiments in one month totaling ten hours, made $19,000 from Twitter (compared with "absolutely nothing" from 30,000 record sales) after creating a "Friday Night Losers T-Shirt," hosting a webcast auction, and offering access to a recording studio event for the first 200 fans to request access.
Josh Freese, a drummer who offers, for varying levels of payment, drum lessons, visits to museums or Disneyland, clothes from his closet, his Volvo station wagon, service as a personal assistant, a spot on tour, or personal songs.
Jill Sobule, who similarly offers, for various levels of payment, access to shows for a year, names mentioned on a "‘thank you' song," concerts at individuals' houses, or the chance to sing on an album.
So don't listen to the record labels. Musicians are not confronting doom and gloom. Unlike the late 20th century, in which record labels played a crucial role, musicians today have the tools to undertake every step of the creation, distribution, marketing, and fundraising processes themselves.
The irony of the labels' flawed arguments is that they ignore that many independent musicians are thriving today, using tools their predecessors could only have dreamed about. No longer is the 20th-century, label-reliant model needed for success. The record labels may continue to witness the decline of their business model, but musicians may find that "the sky is rising."
There are lots of ways companies and people try to get around the abandonment of trademarks in disputes, from claiming a "secret menu" constitutes continued use to simply asserting that having bought a company means the now defunct brands have been incorporated into the new company. But it's simplicity that brings pleasure to me in my ripe old age, so I sort of appreciate this dispute over the trademark of the Electric Daisy Carnival music festival in which two semi-associated music promoters, one now a chef for the Williams sisters of tennis fame (not making that up), essentially claim that they allowed another music promoter to use the festival name for nearly two decades but didn't intend for it to be abandoned.
There are actually two complaints before the USPTO to digest here, and the link above has a ton of back-story. The shorter breakdown is that the Electric Daisy Carnival festival put on by Pasquale Rotella has been in existence since 1997. It's something of a rave festival or whatever the kids are calling it these days, draws in something like four-hundred thousand fans a year, and is a staple at the Las Vegas Motor Speedway. In other words, this isn't some obscure get-together. Yet, despite it having gone on for eighteen years, former music promoter Stephen Enos, who now cooks for Serena and Venus Williams professionally, and current music promoter Gary Richards have filed separate complaints to cancel Rotella's trademark. Rotella's company, Insomniac, claims that this is a money-grab. Regardless of the motives, Enos and Richards both have uphill battles, given the clear abandonment of any trademark they might have had.
"Trademarks are 'use it or lose it,' they're not like patents, where whoever thinks of it first wins," said Daniel M. Klerman, a professor at USC's Gould School of Law. "Even if there's no doubt that [Richards or Enos] used it first, abandonment is a pretty standard defense. To say, 'We haven't used this in 20 years, but we always intended to revive it,' that's a hard thing to do."
You would think that any complaint after all this time would have to come with an explanation for the time-lapse riding side-car. In this case, there isn't any real defense even attempted. Let's first get Enos' take, since he filed his complaint first and we need to let him get back to whipping up Serena's eggs benedict.
According to Enos' petition, Rotella later used the Electric Daisy Carnival name without his knowledge to promote a festival at the Coliseum in 1997. Enos claimed that he allowed the festival to continue so as not to disappoint fans in the nascent L.A. dance music scene but that he never intended to relinquish the trademark. Enos' attorney provided screenshots of previous Insomniac websites that said the name was "borrowed from Steve Kool-Aid's original creation." As Rotella continued to use the trademark through the '90s and 2000s, dance music became a lucrative festival phenomenon in America, Rotella first registered the Electric Daisy Carnival trademark in 2002 (he registered "EDC" in 2012, and re-registered "Electric Daisy Carnival" in 2010 ).
Steve Kook-Aid was Enos' industry name because the dance music scene is a odd, odd place brah. Anyway, as you can see above, his argument mostly consists of claims that he was just trying to be cool, yo, and can he please have a chunk of the Electric Daisy Carnival value now that it's super successful? Well, unfortunately, there's no "being cool" exclusion to trademark abandonment and the time-lapse between the allowed use and the complaint, even with the nod in Enos' direction by Rotella, is pretty clearly abandonment.
Richards, for his part, used to partner with Enos' event company. His explanation for the abandonment is essentially the same, but relies on "oral licenses" arguments in which he advocates not only for his own ownership of the trademark, but for Enos' as well. The two of them apparently had no idea the other was filing these things.
Richards' petition says that he and Enos began using the Electric Daisy Carnival trademark in 1991 and that they granted an oral license to Rotella to use the name in 1997. But Richards' complaint said that he similarly never intended to turn over the rights to the trademark and that the mark belonged to him and Enos. The petition claims that Rotella "knowingly made a false, material misrepresentation of fact when he filed the Application, with the intent to defraud the United States Patent and Trademark Office by claiming that he was the true owner of the Mark."
Even assuming that anyone buys Richards' claim that they simply gave Rotella an oral license to use the brand, that wouldn't explain why there haven't been any claims over the subsequent decade since Rotella first trademarked Electric Daisy Carnival. Neither does it relate to the abandonment of the trademark in use by either party. Certainly there is no trademark dispute in the opposite direction coming from Rotella, which you'd expect if either Enos or Richards were throwing their own Electric Daisy Carnival festivals.
Sorry, guys, but abandonment rules here, even if you were trying to be cool twenty years ago.
from the not-like-the-old-days-when-you-got-screwed-by-your-label dept
I've been a Pink Floyd fan for most of the time I've been alive, so it was rather disappointing to see band leader and professional misanthrope Roger Waters recently come down with a terrible case of "get the hell off of my lawn." Speaking to a reporter earlier this month, Waters, the man who once blasted oblivious, recording industry bean counters in "Have a Cigar," assailed Silicon Valley as a corrupt den of "rogues and thieves." Rogers also pined for a simpler age -- one when musicians and artists were screwed more directly by their music label:
"Most of all I feel enormously privileged to have been born in 1943 and not 1983, to have been around when there was a music business and the takeover of Silicon Valley hadn't happened and, in consequence, you could still make a living writing and recording songs and playing them to people,” the bass guitarist and singer said.
Right, because as this outlet has covered extensively, the Internet has destroyed the music industry, and it's simply impossible to make any money off of art in this day and age. The fact that the Internet and piracy effectively turned albums into promotional material to sell merchandise and concert tickets is a very difficult idea for older generations to grok, but it's still kind of painful to see a rock hero of my youth fall victim to aggressively rigid neurons.
Waters doesn't stop there, and proceeds to trot out a litany of well-tread conflations, distortions and other flimsy arguments, joining folks like U2 manager Paul McGuinness in no longer understanding how the music industry he's a part of (kind of, since he hasn't released a new album in 23 years) actually works:
"When this gallery of rogues and thieves had not yet interjected themselves between the people who aspire to be creative and their potential audience and steal every f***ing cent anybody ever made and put it in their pockets to buy f***ing huge mega-yachts and Gulfstream Fives with. These … thieves! It’s just stealing! And that they’re allowed to get away with it is just incredible."
Waters went on to say that music lovers must take some responsibility for this parlous situation. “I blame the punters as well to some extent, a whole generation that’s grown up who believe that music should be free,” he said.
"I mean why not make everything free? Then you could walk into a shop and say ‘I like that television’ and you walk out with it. No! Somebody made that and you have to buy it! 'Oh, I'll just pick up few apples.' No! Some farmer grew those and brought them here to be sold!"
And here you were foolishly thinking that the Internet managed to open a massive new universe of music distribution possibilities and business models, helping countless artists connect more directly with their fans. As we've noted probably more times than can be counted, "free" isn't the business model -- free is part of one potential business model, and when done right, resonates incredibly well with consumers.
It's certainly fine if you don't like that, but that doesn't really change reality in the age of broadband and piracy. Of course if it makes Roger feel any better, the same wolfish recording industry Roger used to mock is still there at the end of the gravy train, working tirelessly to prevent artists from seeing their just deserts in the Spotify age. There's certainly plenty to criticize about some specific new Internet-based business models where artists still get screwed; but Waters doesn't really do that -- he just shakes his cane at the general direction of the Internet and "pisses and moans," as my grandfather used to say.
I'll of course never stop loving Pink Floyd ("Animals" in particular), and Waters' lessons on critical thinking, empathy and alienation are pretty much bone-grafted to my personality. Sadly though, he's also now a perfect example of the dangers of letting your aging synapses get so rigid you can't see new forest growth for the trees -- since I'd like to believe, maybe foolishly, that's not an inevitable symptom of aging. Of course I was one of those deviant rogues who helped destroy the music industry by swapping free tapes like this one:
Last year, we wrote about a somewhat crazy lawsuit involving ASCAP, Pandora, and various record labels that was officially about trying to force Pandora into paying higher rates. There were a lot of moving parts in the case, but a key point was that various publishers (owned by the major record labels) pulled a neat little trick in which ASCAP allowed the publishers to "partially remove" their catalog, such that ASCAP could still license the catalog to traditional organizations, but not to "new media" companies (i.e., Pandora). Then, the publishers tried to "negotiate" independently with Pandora, and by "negotiate" I mean "refuse to tell Pandora what songs were no longer covered by ASCAP and then threaten a massive lawsuit if Pandora accidentally streamed any of those songs." Under such pressure, Pandora caved and agreed to pay much higher rates to those publishers, and ASCAP then spun around and tried to argue that those new rates were much more representative of "market rates" leaving out how the whole thing was planned together as a group as a form of collusion. Thankfully, the district court recognized what was going on, and mostly sided with Pandora, raising the rates slightly, but nowhere near as much as ASCAP and the publishers sought.
ASCAP and the publishers appealed, but the appeals court has now easily sided with Pandora, seeing no problems with the lower court's rulings. The ruling [pdf] doesn't get into the whole collusion bit, but does note that allowing publishers to do this "partial removal" trick quite clearly violated the letter and spirit of the ongoing "consent decree" that ASCAP has with the Justice Department, to guarantee that it's not violating antitrust law. The consent decree says that if someone wants to license music that ASCAP has the right to license, ASCAP has to provide that license. Since it makes no distinction among different kinds of services, ASCAP can't just make up that part:
Appellants contend that publishers may withdraw from ASCAP its right to license their works to certain new media music
users (including Pandora) while continuing to license the same
works to ASCAP for licensing to other users. We agree with the
district court’s determination that the plain language of the consent
decree unambiguously precludes ASCAP from accepting such
partial withdrawals. The decree’s definition of “ASCAP repertory”
and other provisions of the decree establish that ASCAP has
essentially equivalent rights across all of the works licensed to it.
The licensing of works through ASCAP is offered to publishers on a
take‐it‐or‐leave‐it basis. As ASCAP is required to license its entire
repertory to all eligible users, publishers may not license works to
ASCAP for licensing to some eligible users but not others.
Basically, the consent decree is quite clear: if you have the right to license the music, you have to license it to all-comers, and you can't make up artificial classifications that you won't license it to. As the ruling notes, it seems what ASCAP and the publishers are really trying to do is to rewrite the consent decree on the fly and have the court system sign off on it. The court will not do that:
Appellants would have us rewrite the decree so that it speaks
in terms of the right to license the particular subset of public
performance rights being sought by a specific music user. This
reading is foreclosed by the plain language of the decree, rendering
Appellants’ interpretation unreasonable as a matter of law
Of course, ASCAP, the publishers and the labels have been lobbying quite hard to get the DOJ and/or Congress to throw out the consent decree altogether, so that they can go back to colluding in this matter to try to jack up rates. Expect those efforts to expand even more given this ruling.
Finally, the court also says that the new rates set by the lower court are perfectly fine and it sees no reason to change those rates, no matter how much whining ASCAP might do about the new rates.
Having reviewed 1 the record and the district court’s detailed examination thereof, we conclude that the district court did not
commit clear error in its evaluation of the evidence or in its ultimate
determination that a 1.85% rate was reasonable for the duration of
the Pandora‐ASCAP license. We likewise conclude that the district
court’s legal determinations underlying that ultimate conclusion—
including its rejection of various alternative benchmarks proffered
by ASCAP—were sound.
Basically: just because you say the rates are unfair doesn't make them unfair. Either way, given the way ASCAP and the publishers have whined and complained about this entire process, expect that to reach a new level of ridiculousness in the near future, with a bunch of bogus talk about how absolutely unfair life is for them, even as they rake in tons of money.
Apple has been using its considerable power in the music industry to stop the music labels from renewing Spotify’s license to stream music through its free tier. Spotify currently has 60 million listeners, but only 15 million of them are paid users. Getting the music labels to kill the freemium tiers from Spotify and others could put Apple in prime position to grab a large swath of new users when it launches its own streaming service, which is widely expected to feature a considerable amount of exclusive content. "All the way up to Tim Cook, these guys are cutthroat," one music industry source said.
And it's not just Spotify. Apparently, Apple was trying to get labels to pull music from YouTube too:
Sources also indicated that Apple offered to pay YouTube’s music licensing fee to Universal Music Group if the label stopped allowing its songs on YouTube. Apple is seemingly trying to clear a path before its streaming service launches, which is expected to debut at WWDC in June. If Apple convinces the labels to stop licensing freemium services from Spotify and YouTube, it could take out a significant portion of business from its two largest music competitors.
This is fascinating for a few reasons, even beyond Apple's antitrust troubles over ebooks. In fact, there's some history here as well. A few years ago, there was an investigation, after Apple tried to pressure the labels into killing off daily deals that they were offering to Amazon, as it harmed Apple's iTunes business.
And, of course, there's the long history of the labels' relationship with Apple for much of the first decade of the millennium. Almost exactly a decade ago, we wrote about how the music labels all resented Apple because it had become such a dominant force in music with iTunes and the iPod (this was pre-iPhone) and had (for a while, at least) blocked the labels from trying to raise the price of single tracks beyond the original $0.99 price point. Of course, it's quite a sign of how the online music industry has shifted from downloads to streaming that those labels are apparently now working with Apple to focus on trying to stop competitors like Spotify and YouTube.
Just a month or so ago, we noted that there had been a series of articles claiming that the labels themselves were conspiring to put an end to free tiers on Spotify and other services, and we pointed out how stupid this was (mainly in the context of Jay-Z's new "Tidal" service). Bringing Apple into the game as well just makes the whole thing that much more ridiculous.
Rather than trying to build a better experience for users and give them more value, it appears that the labels and Apples are looking to decrease the value of competitors through coordinated action. It really says something -- and not something good -- when a company thinks the only way to compete in the market place is to kneecap competitors rather than build a better service itself. Competition has shown that great services can be built when they actually do focus on what consumers want. And there's still a long way to go. Spotify still has significant problems, but it's pretty good right now. It's astounding that Apple and the labels think that the right solution is not to build an even better product, but rather to make everyone else's products worse. Once again, it makes you wonder if they actually want to drive consumers back to completely unauthorized services.
And here's the thing that's really bizarre: why should Apple care about this at all? Apple is a hardware business. Even when iTunes was dominant, people at Apple would quietly admit that it was considered a "loss leader" or maybe a "breakeven leader" with the focus on selling more hardware. The same should be true of a streaming music service. Beats can make iPhones even more valuable -- and one way to do that is by offering a free streaming tier. Why Apple wants to take away its own value seems like a strategic error all around -- not just for consumers and competitors, but for itself as well.