Ethics vs. Law

I was surprised by Randy Cohen's Ethicist column in the recent Sunday New York Times Magazine about the ethics of media piracy. Since the woman who wrote in had bought a hardcover copy of the new Stephen King novel and the publisher had decided to withhold the e-book version (to increase hardcover sales), the columnist decided her piracy of the e-book was illegal but ethical.

The dilemma this woman faced isn't unique though it's typically couched in terms of fairness or usability. However reframing the debate about digital media format-shifting as ethics vs. legality gets to the crux of the issue for me.

Today I was making a mix CD and a few of the songs were iTunes files. There are easy ways of breaking digital rights management protection on iTunes files, but the ones I tried weren't working. I had bought the songs - so the artists were paid - and I wanted to share them but couldn't because of the DRM. Which it's illegal for me to break. Now, if I'd ripped my own CDs, then turning these songs into mp3s would be easy and questionably-legal-but-ignorable. In short, there's no way to legally share those songs. For those that try to answer this need, well, the experience of muxtape is a cautionary tale.

Once you start thinking about all the ways people use music, it's not hard to think of other cases where what seems like a perfectly reasonable consumer desire is illegal. What about DJs who buy vinyl and then pirate mp3s? Some manufacturers bundle mp3s with vinyl to cater to that audience, but the rest are violating copyright law. Even President Obama most likely violated copyright law to give an ipod with some showtunes to the Queen of England.

Predictably, Randy Cohen's remarks inspired blog posts with lots of comments wherein each person placed the line between legality and ethics in a slightly different spot. They're an interesting bunch of comments though precisely because so many of them recognize that there is a difference between legality and ethics.

What most people want to do with their music is pretty simple: listen to it, share it with their friends (not the world), and listen to it again in another place/on another gadget. Readers will want essentially the same thing. It's odd to me that any industry would proactively choose to make their consumers become pirates to get a product that they're selling.

To be continued as the film and book world wade into the bog...

Music as Gewgaw

I admit I live in the bubble of the embattled independent music world. Given that, it was an interesting experience to spend two days in the Corporate Music World when I attended Digital Music Forum East on February 24 and 25 in NYC. Some thoughts on my foray into that strange land:

- Music-as-most-definitely-a-business: I was looking forward to hearing David Pakman, formerly CEO of emusic, now with venture capital firm Venrock, because I'm a subscriber and emusic's obviously been looking to grow their audience and their bottom line lately. The noteworthy point for me of his interview was that, contrary to the many emusic subscribers who cried foul when they started offering some Sony titles last year, Pakman describes emusic's niche of independent music as a business decision. They took the path of least resistance - with the independent labels who were more willing to license to them at decent rates - and built a business model around them. Which says to me, that while the indieness-as-godliness image of emusic might still be "authentic", it's an image built to support a business model, not the reverse.

If that's the case, there's nothing wrong with that since it enabled the rise of one of the most successful digital music retailers ever...but I'd bet it's an affront to all those people who hold emusic as a standard-bearer for the indie aesthetic (whatever the hell that means these days). If you think I paint too strong a picture, try googling "emusic sellout" - it's not all about this topic, but it's a prominent theme.

- A guy from MTV Music was asked why they don't play more music videos. That's probably the most asked question to all MTV employees ever. He talked about how the channel is about more than music videos. And since the schedule has all seven hours of music videos programmed, from 3 AM - 10 AM, I agree. But why not own up to it? Just say that "My Life as Liz" garners more viewers than music videos ever did. No, they're not saying that in so many words but they did quietly drop the words "Music Television" from the logo recently.

- Branding, image, markets, profits, brand penetration, so much about music as a thing to sell other stuff. For example, a question asked from the stage: "do you need music to brand a product or just an engaged audience?" Now I recognize that many indie bands would happily license their song to Sears to fund their next tour. Making money to further your career isn't selling out - these days, it's surviving, which translates to winning the game.

My beef with this whole line of discussion is that it's not about music, rather it's about how to make McDonald's/Proctor & Gamble/Jeep more successful - with the incidental help of X artist/song. Throughout my two days there was very little discussion about paying artists, many complaints about licensing costs, and I'd almost swear I saw the audience smile kindly and condescendingly at the one guy who spoke from the stage of signing artists to his label for their music rather than their marketability! As they all acknowledged, it's a rough business to be in - now and ever. If you're not in it for the music, then why bother? Go sell tires instead already.

It's like that call I got once from some guy wanting to know how easy it was to make good money making music. He seemed to expect me to have a roadmap handy. *Smile* *Sigh*

The Value of Music

Last week, FMC released a document detailing some principles for artist compensation in the digital age.

Reading through the echo chamber that resulted made me think.

We have copyright and patent law:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

"Promot[ing]...the Arts" means to me that our Constitution encourages and rewards creativity that has value. All artistic creations aren't meant to be equal; instead, the Constitution sets up a meritocracy. In short, a creator has an exclusive right for a limited period of time to benefit from their creation IF others put value on it.

In some of the best parts of Larry Lessig's latest book Remix, he discusses what copyright used be for (sheet music and player piano rolls), who it used to affect (not you, me and your grandma), and how a bunch of small, unnoticed changes got us to where we are now. The problem now, of course, is in trying to derive money from a creation that's no longer tangible but freely available.

But doesn't anything that you want have an intrinsic value to you? The problem is only in not having found a way yet to collect money on that intrinsic value.

Skill, talent, creativity and experience have value. I wouldn't go into a restaurant and eat a meal and expect to skip out on the tab. I wouldn't hire a carpenter to frame my house and expect to stiff him. The intangible thing - the song - that a musician creates is no different.

And if copyright is abolished and musicians in the future only get paid on live shows and merchandise and whatever their fans will donate to help them record?

Well, musicians will continue writing and performing music, but it would be harder for some to make a living since they'd have to tour to be paid resulting in more musicians with day jobs; songwriters would suffer since they don't tour; recordings would probably sound worse since more of them would be done on Garageband rather than in studios; the recording/producer/studio industry would shrink since fewer bands would be able to afford a studio recording; recordings might become akin to a vanity press; the way we promote music might change since we'd no longer necessarily be promoting an album...and I could keep going.

Maybe that will be the next incarnation of the music industry. But, for better or for worse, I don't think so. There are too many people with too much at stake for that to realistically happen. The ISP levy experiment on the Isle of Man is an interesting step towards the future.

It doesn't matter how, by whom, or whether the system of payment to musicians resembles the train wreck that it is now. The important part is ensuring that the inherent value of creativity gets recognized.

My guess is that everyone will finally strike a balance that makes no one entirely happy - which is the mark of a good deal anyway - and we'll all attribute today's kvetching to growing pains.

No Dice

Caught School of Seven Bells opening for Fujiya & Miyagi the other night at the 9:30 Club. I can't remember the last time I commented on a lack of musicianship, but 2/3 of School of Seven Bells seems to need lessons in playing their instruments and in stage presence. They sounded like the same beautiful, noisy, dreamy pop from their debut record Alpinisms, but I might as well have watched my ipod since there was nothing to watch on stage...except their guitarist Ben Curtis who played and fiddled with enough sampling gear for a couple of people. The mix didn't do them any favors either since it buried the interesting bits and contributed to the sameness factor of a lot of their set. *Sigh* Baby bands...they get better and then they get their own soundperson.

Fujiya & Miyagi weren't overly endowed with stage presence either, but they were pros and they could play and had this cool animated backdrop. So I liked them, if only because they were so much better than their openers. They'd be ripe for remixing, too, so I want to see what I can dig up.

In other news: Muxtape is back and not like it was. Wish I'd gotten a chance to talk shop with Justin Ouellette when he was a panelist last week.

Comeuppance, please come in. Why should my rinky-dink non-profit have to bear all the burdens of accurate and transparent accounting?

Need more ways to make your cassettes obsolete? Options include converting and recycling.

Speaking of obsolescence, John Strohm explains the legal issues surrounding selling used MP3s. Legalities aside, I doubt Bopaboo has a viable business model - you'd need such massive buy-in from the public to have a database of used MP3s worth searching - but the issues around the concept are sadly evergreen...which is why I dug it out of the old starred items.

Move over, Charm City Cakes for this really cool Darth Vader cake. I love you still though because you would never unintentionally do this.

Carousel

A few months ago, one of our summer legal interns, Jenny, and I were talking about interesting, fun, law-student-worthy projects she could do. At the time, a friend had sent me a link to yet another fabulous mix that was distributed illegally. That got me thinking and I posed the following problem to Jenny: how do I legally post a streaming mix "tape" to this blog that includes any song I want?

Jenny very diligently started researching and took all our ideas of websites that exist in some quasi-legal realm and started piecing the whole thing together. She quickly ran into all sorts of legal bogs and the post is still in mothballs.

Anyway, I thought of it the other day when I saw that muxtape was planning a revival as a completely different service from the online mixtape service it started as. Muxtape's founder Justin Ouellette writes eloquently about his experiences with the four major label groups and the RIAA when he was trying to negotiate a licensing agreement that might have kept Muxtape alive in its former form.

Muxtape is only the latest instance of the mainstream music industry biting the hand that feeds it by refusing to embrace and enable the new and then laying blame when those services are popular. They seem to enjoy crying poor. And now that venture capital is getting harder to come by, there will be fewer services for major labels to try to squeeze for cash. Digital Music News takes a good look at the possible venture capital lessons learned from muxtape as well.

So, inevitable new, cool illegal services + industry reluctant to work with emerging tech = more music available to music fans but less money getting back to the artist and the record company. After a while, artists realize the majors aren't helping their careers and they find more visionary people to help them build music careers. If history is any guide, the major four will hold progressively tighter to their declining revenues and be less likely to work with emerging tech...

Around the merry-go-round they go...you'd think they'd recognize the view after seeing it a few times?

Future Leads to the Past

One severely overbooked flight, four hours of waiting, a three hour flight to a place I wasn't going to (Dallas), another overbooked flight to another place I wasn't going to (San Antonio), 3 hours of driving (Dallas to Austin) that included someone nearly ramming into us on the highway...and we made it to Austin at 12:45 last night...15 hours after I left my house. Insert sigh o' relief here.

I've spent the day chatting and watching panels at SXSW to get ideas on people who can participate in FMC conferences in the future, to actually watch some panels and learn from them - something I don't get to do at our events, and to get a sense of what people are interested in learning.

This afternoon's panels included an interesting one on "Selling Music As a Service." No doubt webcasts will be available in a few days here. The concept of treating music as a service instead of as a product is hardly a new one these days. It feels like the topic du jour, much like pro- and anti-DRM debates were a few years ago. The question that inevitably comes up is "what is the future?"

If I could have the perfect world of musical discovery, what would it be? Would ownership of the music matter? There's certainly an allure to the idea of having the world's entire musical library at your fingertips from one device for you to access at any time for a fee. Portability of whatever system would be key for me. But giving up the idea of ownership would also be a shift in thinking. Our music and other collections define us in so many ways because they're indicative of who we are or were and what we deem or did deem worthy of spending money on or not tossing. What would replace that identification process? Would we have to (wow) go back to talking to each other and not making snap judgments based on that one Celine Dion or Backstreet Boys release that mars an otherwise worldly, eclectic and hip music collection?

I'm off to dinner - possibly to a benefit concert for a documentary called Body of War and My Morning Jacket later tonight and as many other bands as I can see in between now and when I collapse. By the way, NPR is webcasting and broadcasting MMJ as well as Vampire Weekend, and Yo La Tengo and R.E.M. last night.