REEBEE GAROFALO
To begin with, the history of the music industry is that it has greeted any new technology—from piano rolls to radio to cassette tape—with suspicion. It is also the case that the industry has generally ended up benefiting financially from every technological innovation of the twentieth century. When the dust settles around the current flap over MP3, it is likely that the same will be true, although not without some profound reorientation on the part of music corporations.
One assumption I would make that I think we might all agree to is that, in terms of manufacture and distribution, the future of music will be digital, downloadable, and customized for individual taste. That being the case, the current business model of the music industry—centered on the sale of a pre-configured, read-only piece of physical property—is hopelessly outdated. Yet instead of embracing the technological advances that point the way to the future—MP3, the internet, peer-to-peer applications, etc.—the industry, as is typical, has retreated into a protectionist mentality, using its considerable clout to extend the reach of an already limited and limiting copyright system to prop up its moribund business plan. In the short run, the law will be on the side of the major corporations and it will appear as if they are scoring some victories, but ultimately this is a war they cannot win. I say this because of another assumption I make: that there is no such thing as a secure format. Unless the industry can provide a simple, convenient, and affordable way for users to download music—things that Napster already does for free—they will have no incentive to get their music through official channels.
This will mean abandoning a strategy which seeks to motivate consumers negatively by the threat of prosecution in favor of one which focuses on making music downloads so convenient that official industry sites will become more attractive than the existing options the industry finds so problematic. Better enforcement is not the answer to the industry’s woes; better service is.
“Better enforcement is not the answer to the industry’s woes; better service is.”
The average consumer is not motivated by arguments about copyright infringement, nor should they be. Copyright has never been simply an exclusive contract to exploit the fruits of one’s creativity, but rather a balancing act, weighing the legal protection of intellectual property against the public rights of access to information and freedom of expression. And the history of copyright over the last 100 years is that it has become more restrictive, less concerned with promoting the public good. In the case of music this trend would be somewhat more palatable if individual artists were the beneficiaries. But they aren’t; corporations are. Witness the new “Works for Hire” amendment, which makes all master recordings the property of the record company. Indeed, it is fair to say that record companies have stolen more money from artists than all the Napster users combined. Consumers have not fared much better. Recently the major labels admitted to a price-fixing scheme, which robbed consumers of approximately $500 million in a 2.5 year period.
Through its past practices, the music industry has not only created the conditions under which consumers will circumvent the record companies to get their music, they have made people feel righteous for doing so.
ROBERT FINK
This is a good time to be a musicologist. Socio-economic crises like the MP3 wars bring to the surface our usually hidden assumptions about what music is and how it functions in society. I want to open up in this posting the music-historical question of what the rise of the MP3 file as a musical medium tells us about the evolving cultural status of this thing we call “music.” In particular, I want to approach the current crisis in the record industry from what might seems an unlikely perspective: the historical interactions between recording technology and the traditions of “classical” music.
Let me begin by, as the lawyers say, stipulating 99% of what Reebee laid out in his opening post. It seems to me that his take on the ethical and legal issues raised by the recording industry under the guise of “defending intellectual property” is deadly accurate. I want to raise one technological issue, though:
Reebee says—and this is a position echoed by many commentators—that “the history of the music industry is that it has greeted any new technology—from piano rolls to radio to cassette tape—with suspicion.” Now I know what he means, but it seems to me that a key distinction is being lost. The huge electronic conglomerates who own most record labels (Sony, Phillips, etc.) are as committed to technological innovation as a competitive strategy as anybody else. But they do distinguish between (for them) good new technologies and bad new technologies. “Good” technologies increase control over music and tend to increase the perceived value and stability of the musical commodity (recording); “bad” technologies do the opposite, decreasing control over music and lowering the perceived value and stability of pre-recorded “objects.” The classic “good” technology was the stereo LP; MP3 is perhaps the worst “bad” technology ever unleashed. Unfortunately for the electronics industry, it has tended not recognize a bad technology until after the fact—like cassette tapes, originally invented to sell portable and car stereo systems, not to create a home taping culture! (Not many people remember that MPEG Layer 3 is the unintended consequence of what was supposed to be one of the “best” new technologies ever, High Definition TV.)
Here’s where classical music comes in. The record industry has traditionally sold “good” technology under the rubric of “high fidelity.” Where did this drive towards higher and higher “faithfulness” in sound actually come from? — From classical music — in particular, from a modern ideal of “authentic” performance buttressed by what German musicologists called Werktreue, a term best translated as “fidelity to the text.” Musical scores (which were copyrightable long before sound recordings) provide the most compelling precedent for consuming music in terms of “pre-configured, read-only piece(s) of physical property.In effect, “good” technologies borrowed their ideological justification from “good” music, while making big bucks off the “bad.” In fact, historians of recording have argued that the formal imperatives of classical music have been used to justify almost every technological advance in high fidelity: orthophonic and then “full frequency” reproduction, which allowed the basses and piccolos to be heard; the LP, whose length of 17 minutes a side was carefully chosen to allow unbroken recording of the most canonic sonata-allegro movements; stereo, whose aural illusion was most powerfully deployed in recording large ensembles in large halls; and finally, the CD, whose 74-minute length was famously determined by that of Beethoven’s Ninth Symphony.
Since about 1925, record companies and classical music have engaged in a mutually-beneficial minuet: classical music consumers have always been audiophiles and record collectors, providing a steady stream of income even in the hardest economic times, and the prestige of “high art” music burnished the image of the business and the self-image of its CEOs. In return, record companies proselytized tirelessly for “great music,” even though it never brought in even a quarter of their total sales.
But there was more than social status at stake. The Victor Talking Machine company invited the consumer of their musical recordings to listen to “His Master’s Voice.” By positioning themselves as the custodians of musical high fidelity, record companies harnessed the classical-music idea that our musical heritage consisted of a “virtual museum” of fixed, authoritative, and highly valued musical texts which required painstaking, expensive reproduction. They used it to justify treating their texts—i.e., their recordings—as analogous to musical scores, as worthy of accumulation in libraries and (eventual) protection under copyright laws. It is a small step from the imaginary museum of musical works to the actual record archive. (Early record albums were designed to look like bound volumes, and were displayed on record store shelves with their lettered spines out, like books.)
“When MP3s triumph, the classical music canon will really be dead, at least as a legitimating metaphor for the recording industry.”
It is in this context that I find MP3s so fascinating, for they provide conclusive proof that the influence of the classical music model on the recording industry is over. MP3s are a low fidelity, declassicizing technology for music. It’s not just that the short length and reduced sonic clarity of MP3s don’t work for classical music (try typing “Beethoven” into Napster!); MP3 files are not texts in the same way that musical scores and record albums are. When MP3s triumph, the classical music canon will really be dead, at least as a legitimating metaphor for the recording industry. As Reebee points out, people do not relate to the millions of MP3 files indexed by Napster like CDs on a store shelf, where taking without paying equals theft; I would add that they are much less likely in the future to relate to such MP3 “collections” as virtual museums of highly-valuable art objects. The hoarder who keeps thousands of MP3 files on her hard disk is actually still playing by the rules of the Bach-Gesellschaft and Columbia Masterworks; such behavior will disappear as soon as the potential of Internet-enabled music-on-demand is realized.
What makes me so certain about this is the complete absence of any record company attacks on the low fidelity and retrograde listening experience that MP3s provide. The record industry managed to deflect the looming threat of cassette tape by convincing us that tape was a “lo-fi” medium, OK for the car, or to make a mix tape for a friend, but certainly not appropriate for serious listening to serious music. (Classical music is the only format where LPs went directly to CDs, and were not first overtaken by cassettes.) But nobody is even trying to make this argument these days, at least as far as I can tell. Record companies have been making good money convincing us to consume Bobby Darin and Britney Spears as if they were Beethoven. But Beethoven is (music) history; now that people have found a way to consume pop music like, well, pop music, there is no going back.
Let me be clear: I think this may well be a wonderful thing for all kinds of musical expression, and I will not mourn the collapse of the “high fidelity” model of music making. (There must be art musicians right now attempting to adapt to this new medium.) And, the ultimate irony: classical music is at present the most successful music on the Internet—MP3.com’s “Classical Music Channel” is an up-and-running subscription service—just because it is “dead,” because it is no longer the high-status “expensive” music it once was. MP3.com had no trouble licensing entire catalogs of the “classics” from record labels for very little money.
You can buy and sell Vivaldi in bulk on the Internet, and the RIAA doesn’t care. They’re more worried about the Offspring. (Cf. today’s paper, where Sony, heir to the Columbia Masterworks label, successfully intimidated the band into dropping plans to give away its next album over the Internet. The battle continues…)
CASPER PARTOVI
I agree with Reebee’s first assumption regarding the manufacture and distribution of music in digital form (and to dispel any misgivings about lawyer double-speak, I’ll agree 100%).
To stay true to the name of our group here, I’ll chime in about the Napster case. The law, as always, favors established property interests—in this case the record industry’s copyrights. Although it’s not good practice to predict decisions from the 9th circuit court of appeals, the general consensus is that the court will rule against Napster and in favor of A&M Records and the co-plaintiffs. As Reebee rightly points out the industry will win such court decisions in the early phase. Clearly, Napster is challenging the very underpinnings of our conceptions of property, and the legal system is designed to drastically retard that rate of any change to the status quo (the balance Reebee refers to in the fourth paragraph is very slow to tilt toward public rights of access to property). However, the industry ultimately will not succeed in eliminating threats to its current distribution mechanism posed by Napster, et al. because as a practical matter, the current distribution channels for the industry are obsolete.
But, I would suggest that the industry doesn’t need the protection of the courts for long. Already it’s clear that companies traditionally in the business of music content and distribution are establishing footholds that will enable them to take advantage of the internet distribution model (witness the Time Warner AOL merger. Companies can adapt to new business models more quickly than the law can recognize new concepts of property. The brief respite granted the industry by these early court decisions will likely be sufficient for the industry to adapt to the new model. By the time the law struggles to recognize the concepts of property being proposed by Napster, I’m inclined to believe that the industry will have retooled itself to fully exploit these new possibilities. The industry players today will most likely continue to dominate distribution-though we may be hard pressed to recognize it as the same industry.
“By the time the law struggles to recognize the concepts of property being proposed by Napster, I’m inclined to believe that the industry will have retooled itself to fully exploit these new possibilities.”
The control of the industry over content, of course, is another matter. The Offspring “agreement” with Sony only highlights the extent to which content providers are dependent on the record companies. (I’m curious to hear if anyone believes that this dependence will be reduced or eliminated with the new distribution model.)
Finally, to follow Bob’s point #1, I think the “good” v. “bad” technology (as it related to control over content) accurately describes pre-internet/napster music business. I would suggest the criteria for the new model will be control over the process of music consumption (i.e. whose hoops the consumer has to jump through in order to get the musical product).
BECKY GEBHARDT
Whether or not Napster and other MP3 technology becomes highly restricted and regulated, new technology will develop to circumvent the new laws. I could care less about Metallica or Dr.Dre “losing money” because of Napster, because I know that there are a lot of struggling musicians who are benefiting from it. For a small band, the free distribution of their songs means that more people will hear them and know who they are and therefore be more likely to go see them play and buy their album. Yes, people like getting free music, but many people also care about supporting independent music, and would buy a CD of something they really like even if they know they could burn their friend’s CD or find the whole album through Napster for free.
“If a musician has a strong and loyal fan base, something every artist should want, it is probably due to the trading of cassette tapes of bootlegs and rare tracks. MP3s are an extension of that tape trading system.”
A friend of mine told me he met someone in a chatroom who had an MP3 of one of my band’s songs. This person lived in Illinois; our band is based in Los Angeles. I have no idea how he or she got it, but it is a good thing for us. MP3s allow for this kind of rapid and far-reaching spread of music, which is similar to what cassette tapes have done. In the early 80s, buying and selling mix tapes from the trunks of cars was how hip-hop music (now a goldmine for record companies) spread. If a musician has a strong and loyal fan base, something every artist should want, it is probably due to the trading of cassette tapes of bootlegs and rare tracks. MP3s are an extension of that tape trading system.
ROBERT FINK
Boy, has anybody else been following the media coverage ramping up for the Napster injunction hearing? There’s a lot of worrying about what we want music to cost, but nobody’s talking about what (or how) we want music to be. Just a general acceptance that music is a commodity, and we’re in something like a battle between owners of oil pipelines and oil tankers over distribution patterns. (With Napster and its users playing the role of those nomadic tribesmen who live by stealing from the pipeline while no one’s looking…)
I would love Reebee’s take on the gloom-and-doom picture painted in Salon by Janelle Brown, who predicts the self-destruction of Gnutella and all other file-sharing networks as soon as they get big enough to matter.
Casper pushes me to extend the provisional framework I threw out in my last post:
Finally, to follow Bob’s point #1, I think the “good” v. “bad” technology (as it related to control over content) accurately describes pre-internet/napster music business. I would suggest the criteria for the new model will be control over the process of music consumption (i.e. whose hoops the consumer has to jump through in order to get the musical product).
I wouldn’t be so quick to predict the demise of the classical-music style “good” technologies, the ones that produce expensive collectible objects to sell. As one reporter pointed out, there is still gift exchange, right? (Wouldn’t you be a little embarrassed watching a friend unwrap a home-burned CD of downloaded MP3s at a birthday party?) There are still situations where a pre-recorded object is a useful way to exchange music.
“There’s a lot of worrying about what we want music to cost, but nobody’s talking about what (or how) we want music to be.”
Isn’t it likely that we will still want to preserve music we value (“canonize” in the broadest sense) in stable and orderly fashion? I just bought a 4-CD set of the 1925-27 Armstrong Hot Fives and Sevens. It is packaged like a hardcover book, with glossy archival photos, elaborate and learned notes and references. It contains every scrap of music this group of musicians ever recorded, assembled—curated, really—into a concrete assertion of this music’s lasting worth. (The liner notes throw around the word “classic” A LOT.)
German musicologists had a word for this, too. They called it a Denkmaehler, a “monument,” and it used to take the form of volumes of printed music. I imagine record companies are going to have to become ever-more creative in the ways they package and market monuments of recorded music. Musicology—box sets filled with studio outtakes and alternate b-sides—are a good start: sure, you could download that burst of studio chatter, or the scratchy acoustic demo of your favorite song, but what value do they really have without the full context? And thus the canonization of Led Zep and the Beach Boys proceeds apace. The next step (and this would involve technological advance) would be to take the “you are there” aspect of studio out-take compilations to the next logical level: interactivity. I can imagine a home sound system with its own multitrack mixing board, allowing you really to “get into” your favorite music. Ironically, this would have the effect of redefining the unit of musical “work” as the studio session, not the actual song. You would in effect buy the master tapes of an album, mix and remix to your heart’s content, and then listen to the results. (This should keep the record companies ahead of the hackers for at least a few years. The sheer amount of information in 24 tracks of digital audio ought to be enough to keep any but the most fanatical from trying to distribute this stuff over the Net.)
Remember Thorstein Veblen? Some people will still consume music for display—either display of their wealth (look how many CDs I have), or display of their cultural allegiances (look how much I value our musical heritage).
Now before you jump on me and point out that the DIY remix strategy has been tried and hasn’t sold many records…let me point out that the idea here isn’t to sell “many” records. It is to sell a few, for premium prices, to those who still want to collect and play with musical texts. As I pointed out last post, in the absence of the justifying myth of “great” music, the mass of consumers have begun to see the record industry’s insistence that everybody collect all types of music for what it is: pure pursuit of profit. They have decided that it is stupid to enshrine “Oops I Did It Again” on a piece of indestructible laser-encoded plastic designed to preserve the Ninth Symphony for all time and then force fans to pay $12.99 to listen to it for a month or so.
And they are right.
I think that in the pop music world (i.e., the world of uncanonized or decanonized music) “bad” technologies will get “worse.” The habit of thinking of recorded music as a collection of expensive “things” will be reversed. Musical works may well be replaced by musical processes (an old avant-garde dream, by the way). When a magazine goes on the web, it stops publishing fixed texts at regular intervals and turns to a never-ending flow of constantly updated material. Why shouldn’t Britney Spears’ label do the same with her? It matters little whether there is an admission fee or advertising; all that matters is that fans tune in periodically to see what has “happened” to the collection of songs in various stages of formation that are available to be viewed/listened to/reacted to/modified/talked about/rooted for/flamed etc., etc. She need never put out an album at all, and if she did, who would rip it back into the flux of the web, since everything’s already there…?
[Preach on, Brother Beavis…]
ROBERT FINK, later on Friday September 29:
[oops, I sent off my last post before seeing Becky’s…can’t resist making this connection…]
Yes, people like getting free music, but many people also care about supporting independent music, and would buy a CD of something they really like even if they know they could burn their friend’s CD or find the whole album through Napster for free.
Is buying the CD because you want to “support independent music” in fact the current-day version of buying the record album to show that you care about “good” music?
BECKY GEPHARDT
In response to Robert Fink’s question: Yes. In addition to showing appreciation for good music, which of course does not have to be independently released to be good, there is further motivation to buy CDs. A CD bought in a store is a multimedia package of art containing not just music but potentially artwork, photography, a lyric sheet, a message from the artist, and additional information about the artist. Surprisingly few artists are using CD-ROM supplements as an incentive to purchase the CD. I agree that “studio chatter” would lose value out of the context of the box set, but I think that a lot of people go to Napster seeking the random audio tracks like that (B-sides, remixes etc.) because it would cost a lot of money to buy it all. Plus, those tracks might not be “good” enough to actually buy, but the fan is still interested in hearing them and possessing them somehow. Home-burned CDs of downloaded MP3s are actually a common birthday present these days, at least amongst college students. It is a great gift—all of those songs that you’ve always wanted but don’t own because it isn’t worth buying the whole CD for just one song. It is just like making a mix tape for someone. A mix CD, like a mix tape, is an art form: Selecting songs, putting them in a good sequence, creating artwork for it. On the other hand, giving someone a burned CD of a whole album and not a mix is tacky.
REEBEE GAROFALO
Here’s my take on Janelle Brown. Her argument–which she calls the Gnutella Paradox–hangs on the notion that file-swapping programs like Napster are not effective until they reach critical mass, but at critical mass they are large enough to attract the ire of the recording companies which at present seem to have the legal muscle to shut them down.
First a word about critical mass. On Sept. 8, Brown estimated the Napster community at 20 million. On Sept 29, she tagged it at 30 million. So we have considerable Napster use inflation on the part of journalists who play fast and loose with numbers they may know little about. A study by Media Matrix logged 4.9 million unique Napster users in July and labeled that a 345% increase.
“If all it takes is a couple of million users to bring down the wrath of the music industry, then why hasn’t Aimster—AOL’s Napster-like file-sharing program—attracted similar attention?”
So, my first question is: What is critical mass? If all it takes is a couple of million users to bring down the wrath of the music industry, then why hasn’t Aimster—AOL’s Napster-like file-sharing program—attracted similar attention?Given AOL’s subscriber base, I would expect Aimster to grow to critical mass in no time flat. And Aimster is based on Gnutella, a Napster-like application that is well-known to the music industry, and was actually developed by AOL’s Nullsoft subsidiary before they dumped the company in the Time-Warner merger.
All of this has to do with the way the sides are lining up in the Napster War. The federal government has filed an amicus brief supporting the shutdown of Napster, because they are quite beholden to the entertainment industry (even as they demonize it in the press) as one of their most effective fundraising mechanisms. The major players in the computer industry, on the other hand, have sided with Napster. They realize that peer-to-peer technology is going to change the very architecture of the internet and save them billions of dollars through the increased efficiency of not having to rely on central servers. And they do not want anything standing in the way of its development.
This places the music business squarely at odds with the industry they will have to rely on to make downloadable music a reality. A recent challenge by SDMI—the music industry’s two-year old attempt to create a secure format—to the hacker community to try and crack its code and win $10,000 was flatly refused.
Ultimately, I think Casper was correct that the music industry is using their current legal victories to buy time, to slow the process of developing downloadable solutions until they can figure out how to enter and control that business themselves. And they may well be able to pull it off. If they don’t someone else will. And the biggest victim in all this upheaval will be not artists, not recording companies, not even consumers, but rather the only players who do not have the means to adapt to the new world—mom and pop record stores.