Dr. Frank's What's-it

Herr Doktor:
I can't help but sense a bit of a false dichotomy here. You're absolutely right that people who believe, "that downloading, in lieu of purchasing, a record is neutral (or even, God help us, helpful) when it comes to the artist," are truly, certifiably insane. While there's a natural tendency to create philosophical arguments to explain your preferences/foibles, this is beyond the pale.
You and Ben would know, I'd guess, the proportion of people who actually 'download in lieu of purchase' as opposed to the 'download before purchase' types.
Still, I'm not yet convinced that Kazaa is sufficient to preclude the next 'Zen Arcade' or 'Our Bodies, Ourselves' [Ass kisser - ed.] For that to be true, there'd have to be some alternate means to get the tunes to the kids. Now the whole Clearchannel thing is a political issue I don't really want to get into, but i find it hard to believe that there are MORE radio stations that would play 'Zen Arcade' today than there were in 1985. You could argue that in the old model, you weren't actively ripped off by people who didn't buy the record - they'd simply never heard of you. Now, people that HAVE can either buy or download. If the same number of people know your band, then that's absolutely true: filesharing is an unalloyed bad thing. But filesharing is a way that to reach more people; and for fans, it's way to hear more interesting, music than you could by turning on the radio (maybe it's different in the Bay Area or NYC). The cost of reaching more people is clearly lower than ever, and filesharing is one part of that. Does it work this way all the time? No way. Can it be abused? Clearly - and the long term effects on independent music may well be as terrible as you and Ben foresee. But I think it can function as a useful way for people to be exposed to things they otherwise wouldn't. That hope may seem naive, esp. coming from one who hasn't been harmed by it - but there it is. Rhetorical question: Do you think you two have been particularly vulnerable to fans who feel philosophically justified stealing from you because you're punk rockers? (I cannot belive someone e-mailed you to tell them they'd downloaded all your songs for free, and then asked you to come play for them. That's...scary. But not unlike punk kids bragging about stealing cds from indie record stores and the like...)

Personally, I'd rather see a vibrant, independent radio renaissance but I'm not holding my breath.

I tend to agree with marc. I don't know that there's a reasonable method to measure the true and ultimate effects of file sharing in that its effects cannot POSSIBLY be universal, across the board, or equitable.

I mentioned this on Geoff's blog (http://libertypunk.blogspot.com/) and emailed Ben something similar, but Kazaa hasn't affected my record buying habits other than expose me to bands I otherwise wouldn't have taken a chance on before, due to the relative ease of advertisement. And those who depend upon Kazaa for their musical library probably aren't the ones propping up musicians financially through consumerism beforehand.

Agreed.
The more I think about, the more it seems the folks who really have to worry are the bands in between Limp Bizkit/Britney Spears and Screeching Weasel - the bands on major labels but without full spectrum domination (soft drinks, movies, sneaker ads). The advances major labels put out are significant - bands have to move more than 15,000 copies to break even. One consequence may be major labels stop signing bands with questionable commercial value. And yes, they used to take a few risks: Nirvana, The Clash, Wilco (notoriously).
But the question is, will the Mr T Experience still be able to sell the 15,000+ needed to justify the advance? I have no data whatsoever to back this up, but my hunch is yes. For bands just starting out, without advances and with lower sales requirements to break even, I think it's even clearer that they'll be relatively unscathed. Of course, most will fail and rack up debt, but what's so new about that?

I e-mailed Ben this morning to basically agree with his essay. I took issue with one part of it, which is the idea that the most fanatical fans are sort of leading the massacre of the music industry. Speaking for myself (A Music Fan), if I had a penny for every penny I've spent on records, CDs, singles, maxi-CDs, imports, shows, ect, of my favorite bands... whoa! I'd have lots of money to buy new CDs!! I love the digital possibilities, and I think the Internet does help artists if used properly, but there's too much abuse. It's too easy for people to download a complete CD and burn it on their computer instead of buying a nice copy of it. It's hard for me to see these kinds of people as real music fans. I'm never happy with just an mp3, unless I can absolutely not get it anywhere else... and I will buy it legitimately as soon as I can, because, come on, the real thing is better than an mp3. But that idea is becoming less popular, especially, I think, with the younger kids who basically grew up being able to get whatever music they want for free. The idea of actually supporting bands so that they can keep making music, touring, whatever, is practically antiquated.

I should add that I only recently started taking a more critical eye towards services like Kazaa. I used to really believe (a) through (d) of Dr. Frank's post today, simply because I know that my own use of it has led to me discovering more bands and buying more CDs. But I don't think that's typical any more (if it ever was). It's pretty moot for a handful of people to say "well, I use online music trading as part of a bigger musical experience that includes supporting the bands monetarily by buying more CDS" when a growing majority are NOT doing that. Which is a shame, but unfortunately you can't expect people to be fair when it's so easy to just take what they want without thinking about the consequences.

Holly--

Your last paragraph: Exactly.

That's pretty much what I've been thinking, that while lots of people end up buying *more* music than they would have without file-sharing, it's hard to say how many, and regardless it's pretty likely that there are even more people who end up buying less.

I agree with Frank and Ben that (a) unregulated free downloading of recorded music is damaging to popular music and the musicians who produce it, and (b) the self-serving and self-righteous justifications of the most zealous downloaders are bullshit. However, the rhetoric on this issue sometimes gets a little out of hand (see, e.g., Sen. Hatch's recent remarks).

Intellectual property is not equivalent, legally or morally, to personal or real property. Nor is copyright infringement equivalent, legally or morally, to stealing. If I steal your car, I deprive you of the use and possession of your car. If I reproduce your song without authorization, I do not physically deprive you of anything, at least not directly. You still have your song, and so do I. All else being equal, this is a net positive outcome for society.

The problem is that, if I can get a copy of your song for free, you won't have much incentive (at least not financial incentive) to continue writing and recording songs. Providing this incentive is the justification -- the only justification -- for legal protection of intellectual property.

The US Constitution gives Congress the power "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." Congress enacted the Copyright Act pursuant to this constitutional power in order to give authors a limited exclusive right to profit from their works. You don't "own" your song the same way you own your car. All you own is a copyright -- a bundle of rights -- to profit from your song. And the only reason you own those rights is to give you an incentive to create more songs.

Moreover, these rights are intentionally limited (by the limited duration of copyright, compulsory licensing of certain types of works, and the fair use doctrine, among other things) because giving authors total control over their works would actually inhibit future creation. The goal of IP law is to maintain a vibrant and open public domain, free for all to use and benefit from, while at the same time providing adequate financial incentive to keep authors and inventors producing new works and inventions. You can't discuss intellectual property issues in an intelligent way unless you keep this balance in mind.

All that aside, the fact is that the entertainment industry panics every time there is some technological innovation that threatens to decrease their control over their content, and every time they end up making more money from the new technology than they ever did before. Look what happened when VCRs came out. Someone will figure out a business model to make money from MP3s, and all this hysteria will look quaint in a few years.

Marc-

At least in principle someone in "kaaza-world" could make Zen Arcade II. But it's obviously the case that Zen Arcade II becomes increasingly improbable as it's disassociated from profit motives--even understanding "profit motives" in Dr. Frank’s egalitarian "do it for the kids" context. Ceteris paribus, sustaining something like the existing music scene in "kaaza-world" would entail a critical mass of folks on either the production end or the consumption end (or some combination thereof) consistently deselecting as rational self-interest maximizers. Despite promises and perhaps appearances to the contrary, there’s just not much economic precedent for that. Not to say that trying to disseminate some kind of "no stealing" imperative is a bad idea...

Aaron-

"Intellectual property is not equivalent, legally or morally, to personal or real property."

Of course there’s a legal distinction, but don’t pretend that follows from a self-evident moral distinction. The bald fact that the song can be distributed among people in a way that the car--a physical object--cannot, doesn't have any obvious moral implication from what I can tell. The rest of your post seems to confound the historical impetus behind extant positive IP law, particularly patent law (which you haven't separated out), with moral/ethical authority per se. I smell an ought/is confusion...Moreover, the very essence of the current issue is that it inheres a crisis in our historical conception of intellectual property rights that can't be solved by just retracing our constitutional steps. Sheesh, throw in an irrelevant Jefferson quote while you’re at it...

Spacetoast:

The obvious(at least to me) moral implication of the fact that IP can be used simultaneously by many people without decreasing its utility to the author of the IP is that there can be no true stealing of IP. If you come up with an idea, a song, a story, or whatever, you can use it and benefit from it and so can I. My use of it doesn't affect your use of it. Thus, my use of your IP is not stealing in the same sense that stealing your car is stealing.

Of course, infringing someone's copyright or patent potentially deprives that person of a sale or license fee, so you could say that infringement of IP is "stealing" in a sense. My point was merely that these two senses of "stealing" are different, morally and legally, and that it would be useful when discussing these issues to keep that distinction clear.

I'm not sure what you mean when you say that I am "confusing the historical impetus behind extant positive IP law . . . with moral/ethical authority per se." The "historical impetus" behind IP law was to provide authors and inventors with an incentive to create, nothing more. That remains the justification for the enforcement of IP law today. Infringement of IP rights was not considered to be the moral equivalent of stealing when the Copyright and Patent Acts were enacted, and they should not be considered morally equivalent today, for reasons I think I've now made clear.

That said, I'm a strong supporter of enforcing IP law, online or offline. The IP laws -- and for my purposes in illustrating these points, I'm talking about both patent and copyright law, although you are of course correct that there are impotant distinctions between the two -- are useful to the extent that they provide authors and inventors with incentives to continue authoring and inventing. They are, however, pernicious if they give authors anything more than the bare minimum required to provide that incentive.

The position I'm setting forth is balck-letter IP law, and not controvertial at all. It is the rationale behind the Copyright Act and the Patent Act. If that were not the case, Congress could simply have given authors and inventors the unlimited, perpetual right to control their IP. Congress did not do that because (a) it would inhibit future creativity, and (b) it would be unconstituional.

Anyway, please do not take my comments the wrong way -- I am not defending Kazaa users, have never used Kazaa myself, am a musician with a (very) modest portfolio of copyrights of my own, and make my living representing IP holders. I'm certainly no anti-IP crusader. My comment was aimed only at clearing away some of the, to my mind, overheated rhetoric and putting these issues in the proper perspective.

And in closing, I'd just like to point out, as a great American once said, "we built this city on rock n' roll." (You asked for an irrelevant Jeffeson Starship quote, didn't you?)

Spacetoast:
"Ceteris paribus, sustaining something like the existing music scene in "kaaza-world" would entail a critical mass of folks on either the production end or the consumption end (or some combination thereof) consistently deselecting as rational self-interest maximizers."

I'd say this is basically true, though of course the decision to make Zen Arcade in the first place can be seen as a similar leap away from rational self-interest. As Frank and others point out, it's not like indie rock bands making new (ie. commercially untested) and different music have ever been guaranteed easy wealth. Kazaa didn't create the phenomenon of a poor, struggling (but perhaps great) band. The question is, does it make the cost of staying in music unacceptably high? The barriers to entry are real, though they're fairly low. I still don't think Kazaa would lead angry teenagers to abandon their rock and roll dreams and take up accounting. But it's at least possible that after finding that music can't provide enough revenue to pay off angry studio owners, bands that would have become great will just throw in the towel.
As of yet, I haven't seen any evidence of this - though it's extremely hard to isolate the effect of file sharing in something like that. As Aaron notes, there's an awful lot of overheated rhetoric on both sides - understandable, perhaps, but the fact remains that the process is too new to really understand how it affects indie bands.

Good point, Marc. Driving around the country in a van with a bunch of sweaty, annoying guys, playing at empty clubs for the bartender and his dog (something Frank and I did for years, sometimes together) is undeniably "deselecting as rational self-interest maximizers," but a "critical mass" of musicians has always been willing to do it (largely in the hope of meeting girls, I suspect). Of course, that in no way implies that musicians shouldn't reap the financial benefit of their toils to the extent their toils produce anything that people want to buy. But it does put into perspective the "file sharing is killing indie rock" argument (remember "home taping is killing music"?). File sharing is not a cataclysmic event, either for IP law or popular music. The next few years will see some lawsuits, some licensing deals, some new legislation, and more new technology, and eventually this will all work out.

Aaron-

lol, thanks for the quote, although I have to say, unfortunately, the city I'm in at the very moment was definitely not built on rock'n'roll :-(

(1) Look, (generously) assuming "my use doesn't affect your use," then does it realy follow that the stealing question + the moral/legal problems are obviated? Consider the following scenario:

You "schmeal" my car, meaning you take it and simultaneously replace it with a car comprising the exact same basket of uses--ignoring insurance issues, registration issues, etc....it could just as easily be a super-duper lawnmower or whatever. Now, I know of no interpretation of the law on which "schmealing" is within your rights, and I don't see that the moral question is settled. In any case, unless "schmealing" is legal, it follows that there is at least some generally recognized component to property rights excluded by your utility-deprivation standard, and on the face of it, imo and I think yours too, legitimately so. And my scenario, remember, even accepts the in my view dubious ("my use doesn't affect your use") presumptive premise. If you want a technical distinction between stealing and "schmealing" I suppose that's fair, but, as they say, what do you win when you win what you win? Certainly not a justification for "schmealing"...

(2) Everything you say subsequent to "I'm not sure what you mean" is exactly what I mean, but I do apologize for my ugly sentence. To clarify, while it is the case that IP law, especially patent law, was mainly established as an incentive booster and thus an economic catalyst, it's not the case that either (a) this motive exhausts ethical concerns in deciding what kind of constraints should govern IP, or (b) that past constraints are morally/ethically authoritative simply in virtue of being past constraints. When you say "the historical justification..." I believe you are confusing 'justification' qua cause with 'justification' qua grounds. Here, the former is associated with an empirical question, while the latter is associated with an ethical premise that's always up for grabs. This is known as an is/ought fallacy--http://www.swt.edu/philosophy/fallacies/isought.htm

Alright, I'm done trolling for now, thanks for the interesting conversation... ;-)

Spacetoast:

Fair enough; I really don't think we disagree all that much. I understand your is/ought concept (I went to philosophy school too), it just happens that in this case, the is and the ought are the same, at least for purposes of whether or not it's OK to reproduce and distribute another person's works of authorship under positive US law (which I think is what we are discussing).

Copyright infringement is certainly wrong in the sense that it is a violation of law and actionable. And it's also wrong in the moral sense that it violates a person's rights. My point is just that the rights that copyright infringement violates, being rights statutorily granted for an expressly utilitarian purpose, are not on quite the same level as traditional property rights (which, I think you'll agree, are not considered *merely* utilitarian in our society). So I'll grant you that copyright infringement is "wrong"; it's just not wrong in quite the same way, or for quite the same reasons, that stealing of personal property is wrong. If you are arguing for a "moral rights" regime for works of authorship, well, that's just not US law (although I understand they do have such laws in other countries).

Anyway, I wanted to point out the distinctions between IP and other types of property in order to bring the discussion about file sharing back to where I think it belongs: a practical discussion about how to order a set of financial relationships, rather than a heated debate about people stealing from each other and/or selling out and being greedy rock stars. 'Nuff said on my part. Thanks for listening.

Everyone here has made good, interesting points (and keep 'em coming.)

Aaron is right, no doubt, that eventually some sustainable commerce model will emerge, and that all the "hysteria" will seem quaint in a few years. I'm just not so sure that that commerce model will be an unequivocal blessing.

And I hope I don't sound hysterical. I don't feel hysterical. But I am concerned about the general trend towards devaluing songs and other intellectual property as products in themselves, and re-centering their potential for profitability and funding in other areas, like advertising and sponsorship. You can observe this trend not just with regard to music, but wherever content is "provided." The arguments of the advocates of Free Content are very much in this vein. And I see it as quite a bad thing for most musicians in the near-to-mid-term, as well as for consumers and fans in the long run.

Say it costs $20,000 (apart from manufacturing and promotional costs, which would boost the numbers much higher) to record Zen Arcade. In order to sustain that, someone, somehow, somewhere in the process has to buy at least $20,000 worth of Zen Arcade. Right? The Free Music ethos essentially is that this $20,000 must come from somewhere other than the sale of the "mechanical" recording itself, which is accordingly made available for free (intentionally or otherwise.) The benefit to the artist is alleged to be a great deal of exposure to teeming hordes of music fans who may stumble across Zen Arcade in the process of their quest for free stuff. This exposure, then, can be turned to the artist's advantage in unspecified, but potentially wonderful, ways. It is also said that even those who get the album for free, like our Geoff, will buy the CD anyway as an expression of charity and goodwill towards the band. I believe these people, in the contemporary jargon I've learned from reading these and other comments, are technically referred to as "chumps." (And God bless 'em.)

Maybe there are $20,000 worth of chumps out there, who knows? You wanna give me $20,000 to record Dr. Frank Arcade, on the assumption that 20,000 people love me so much that each of them will send you a dollar bill with a lipstick kiss on it as token of their esteem and appreciation? (Okay, the kiss is optional.) Cool-- email me and I'll have my lawyer draw up the papers.

Advertising and sponsorship are far more likely than charity to fill the gap, once retail sales are rendered negligible in the theoretical brave new Free Content world. And maybe I'm wrong about Dr. Frank Arcade's lack of potential to attract sponsors and advertisers. But if I can't get the $20,000 from somewhere, I don't get to make the album. It's not, Marc, that I don't want to record it. And it makes no difference whether I throw in the towel or not. It's just that there's no way on earth this album can be recorded, if I can't persuade someone to risk lending me $20,000. You just can't sell that much plasma.

We're not at that point yet, of course, and maybe we'll never get there, as new angles emerge. People are always willing to pay for convenience, and ultimately the method of digital distribution that will win out will probably be the one which is easiest from the user end (something along the lines of the iTunes store, for example.) This is especially plausible with regard to recordings that already exist, that have already been funded. For it to solve the Zen Arcade problem, though, this cost will have to be considerably higher than "free." Or perhaps Apple or a similar entity, a "distribution" hub that also functions as a de-facto "record label", could disguise such development and production costs, subsidizing them by selling ads-- but now we're back where we started.

As it stands, people without computers, people who are lazy, people who like professionally printed tray cards in jewel cases, and (let's not forget) "chumps" still buy records (though they buy less of them these days.) Free Music is sustainable now because it hasn't been completely put into practice, because it is only fully taken advantage of by a privileged few, containing a saving subset made up of the lazy, the careless, and the selfless. In other words, the Luddites and the Chumps are subsidizing the "revolution." That's nice, but it's not sustainable.

Unless I can figure out a way to make Dr. Frank Arcade more appealing to Reebok, or really save those plasma dollars and make them count. Watch this space...

SubPop used to run a subscription service for
vinyl singles. Pay a fee up front and every
month they send you a single. It's not advertising, and although it's sponsorship, it's not corporate sponsorship. It's probably not scalable, but it is portable to the web. Sell subscriptions (or "shares"?) in Frank Arcade, and if you sell enough you make the album and they download it and share it with whoever. Granted, for Dr. Joe who I've never heard of, he needs to buy advertising to get the subscriptions, so maybe we're back to square one, but at least it answers your specific question.

I should add that of course the "Free Music" people are completely insane. If you want music made, you have to pay for it. If you're not paying for music, what will get made is what you are paying for, be that advertising or whatever. Maybe a radio/TV style indirect way of paying artists will be good enough. But if you think commercial radio sucks now, why would you want the internet to become even more like it by using the same economic model with ruthless efficiency?

(final comment, I promise)
Aaron-

The is and the ought really can't be the same thing--that's just not how isses and oughts work. You seemed initially to be suggesting the stolen-car/utility-deprivation standard as a candidate for the ought. I think my "schmealing" scenario presents an intuitive hurdle for that standard. I think, either "schmealing" is okay in principle or the utility-deprivation standard has to go. And just to be clear, it doesn't matter whether or to what degree "schmealing" maps onto copyright infringement, the standard itself is what's at issue as the submitted moral basis for your theory of property rights. Your other points have all been is-statements, or statements about function and convention, along the lines of "this is what IP rights do" "this is the way US positive law works" "this is the historical rationale" and so on. Reread my comments and you'll see that I haven't disagreed with any of those points. I haven't called into question your grounds for assigning different legal values to copyright infringement and grand theft auto, only your grounds for assigning them different moral values and then legal values as consequence of that. This latter assignment, I'll concede, is understandable as some kind of pre-theoretical conviction, but keeping that conviction requires a defense in terms of something other than positive law, and, unless you want to admit "schmealing," something other than the utility-deprivation standard, or at least an acceptable refinement of it...surely you can appreciate this. I'm not arguing for any particular "moral rights" regime so much as playing devil's advocate to what I take to be yours. But when you say here that there's this moral difference, and over here that we're just talking about US positive law, I feel like you're moving the goal posts back and forth. Anyway, I think you're right that it's really an issue about workable financial relationships, and, I would add, the costs and benefits of various possible points of control. Law and economics, yay!

Anyway, it's obvious that the solution is for Dr. Frank to get himself a patron. Maybe Geoff from the Liberty Punk blog can parlay his future as du jour-ubercapitalist-ibanking-headcrusher into philanthropy...sort of a punk rock Andrew Carnegie type deal...hmm? Geoff?

Damn...
Frank, I think your view of the ratio of 'Chumps' to 'free riders' is very different to mine.
"The benefit to the artist is alleged to be a great deal of exposure to teeming hordes of music fans who may stumble across Zen Arcade in the process of their quest for free stuff. This exposure, then, can be turned to the artist's advantage in unspecified, but potentially wonderful, ways."
Those unspecified ways include such old fashioned things as purchasing records, showing up at gigs and buying merch. Yes, all the people who used to buy your records could decide to start downloading instead, but I find that incredibly unlikely. Starting a band and making records is not, from the cold, autistic perspective of rational expectations, a smart thing to do. And yet it happens all the time. Same with buying those records. There's now a new way to have access to the product that's basically free. But there's been ways to cheat artists out of their IP for decades. I'd guess that the development of low-cost CD-Rs and CD burners posed just as big a threat to the music industry as file trading. Why buy it when you can make a note-perfect copy for 12 cents? And in full cd quality, not 'almost-but-not-quite' 128kb/sec quality. Why, the only people who wouldn't do this are hicks in outer mongolia who'd have to drive 5 hours to the nearest cd burner, or people without friends (hmmm, maybe that's why I buy so much music). Substitute 'losers' for 'luddites' in your analysis, and it works just fine.

I just think you're giving file sharing too much credit. "But if I can't get the $20,000 from somewhere, I don't get to make the album. It's not, Marc, that I don't want to record it."
Right. But for this to be true, Kazaa will need to radically alter labels risk analysis. You'd know more than me if this is the case, but I can't believe it's had that sort of earth shattering impact on indie labels - turning even largish labels like Lookout from groups with the ability/desire to front you $20,000 to a group of soulless people who turn bedroom demos into CDs by inserting professionally printed tray cards into cheap CD cases.
Bands still sell records, and labels will continue to offer successful bands advances - sometimes in excess of $20,000. File sharing has undoubtedly impacted everyone's calculation of expected sales, but so has demographics (high school enrollment's leveling off, but there are lots of college kids. Yay art rock!), so has the overall decline in record sales (which began before Napster came on the scene - they've been declining steadily since the early 1990s).

If indie rock survived everything from CD-burners to Clear Channel to MTV, it'll survive Kazaa.

Aaron: "(something Frank and I did for years, sometimes together)"
Oh- THAT Aaron. Hi there.

Andrew: "SubPop used to run a subscription service for vinyl singles." Bad example in that it failed, twice. People pay an arm and a leg for some of those things, but I don't think it helped the bands much.

The solution to the problem, and this would help EVERYBODY involved, is to limit the quality of the mp3s to something that would let you hear what was going on and make you want to buy the album cause you couldnt enjoy the mp3s.
Like 1-800-MUSIC-NOW (the w didnt matter) did. You could hear the songs over the phone as much as you wanted.

Marc, I don't mean to exaggerate the effect of file sharing, though I understand that I may have left that impression. It is harder to sell records these days for a variety of reasons, as you point out, and file sharing is certainly not the most important among them. (It's stupid to claim, though, as many do, that it has no effect-- it's an economy after all.) My impression is that labels are indeed more risk averse these days: the independent ones I know are putting out fewer records.

My point isn't to attack file sharing per se, nor even to attack the "free riders," as you call them. My concern is the larger trend, of which the Kazaa culture and its boosters certainly are a part, towards degrading the value of copyrights, making it more difficult for writers and artists to find ways to profit from their work, and, clearly, making it more of a struggle to continue to do that work. This trend is a fact of life, and that's not going to change. But I don't see this as something to celebrate, though I'm often told that I ought to see it that way.

I get your point about trying to be a musician and putting out records not being the most rational financial decision under most circumstances. Obviously people will indeed keep trying to do it, no matter how challenging it is. But there is something weird about saying that this mitigates when it comes to writers and artists not being compensated for the use of their work. I hear this all the time, and I have to say, it has a kind of "let them eat cake" quality. For most musicians, it's true that any income they get merely subsidizes an overall losing proposition. But that doesn't mean that less of it does them any good.

The idea is that, to whatever extent paying for music is or will become voluntary, there will be always be enough volunteers to provide just enough incentive that people will keep making music. I'm sure that's correct, though it doesn't make it right. But, ethics aside, I still have my doubts about this shareware-type model as a realistic way of subsidizing production costs. I deeply appreciate the dozen or so kind souls (out of tens of thousands of downloaders) who donated to "democracy, whisky, sexy," and I'll even admit, pathetically, that these dozen or so donations did help a bit with the bills that month. But it wouldn't pay for an hour of non-bedroom studio time. (Whaddya need a whole hour for? The song's only two minutes long!) Maybe I need to seek out a better class of "chumps."

Frank,

"I get your point about trying to be a musician and putting out records not being the most rational financial decision under most circumstances. Obviously people will indeed keep trying to do it, no matter how challenging it is. But there is something weird about saying that this mitigates when it comes to writers and artists not being compensated for the use of their work."
People will make music even if the odds of them living comfortably off of music sales is extraordinarily unlikely. I didn't make this point to say that that fact mitigates IP theft. I was responding to what Aaron's called the overheated rhetoric on this issue. In this case, that rhetoric was Ben Weasel's: "So for those who insist on stealing music via the Internet, you might want to stock up now because things are going to change. As my friend Jack says, I hope you like Good Charlotte and Britney Spears, because pretty soon that’s all you’re going to be getting."
I find this unlikely, for the simple reason that no one (almost no one?) starts a garage band, or writes truly original songs, with the thought that they're making a prudent investment. That was true in the 60s and it's true now.

Again, I'm not surprised that labels are becoming more risk averse, but as you point out, file sharing isn't even the most important reason for the overall drop in record sales. What we're left with is something that provides an anonymous, basically free way to steal music. Icky. But not something that's either going away or forcing recording artists into penury. In a few years, we may have real data showing that Kazaa WAS the deciding factor in shuttering some decent size labels and preventing some good bands from soldiering on. But until then, I see it as another in a long line of tools that allow folks to rip off artists.
I think we keep talking past each other because I'm arguing about the industry-wide impact (particularly on indie music) and you're arguing the morality of file sharing. I agree that the shareware model doesn't provide a lot of hope for musicians. But part of the problem is our different perception of how many free-riders there actually are. Maybe I just can't believe that thousands of people view PTP sharing as a way to get cds without paying. I keep thinking that these people are so loathe to actually buy music that they wouldn't have if Kazaa didn't exist - they'd tape radio shows or burn their friends cds directly. Who knows. It's certainly more comforting to see these folks as inveterate IP thieves instead of law abiding citizens who cracked when faced with a wholly new form of temptation.
Anyway, thanks for the forum and the discussion.

You know, there's probably ten gazillion debates happening on the internet, through blogs, BBS, email, whatever. I think it's actually a rare case when a mind is changed, since debating typically reduced to a re-affirmation of the beliefs both sides had before.

But I have to say that Ben, with no small part due to Geoff and this discussion here, has changed my mind. I don't know whether or not I've used Kazaa for the last time because of it, but I certainly feel a stigma towards it that I didn't have before.

Oh, and I'm sure Ben can write it in more classy terms than I can, but I guess I was sold on the "if Kazaa is free advertisement, and that's a good thing, then why isn't it permissable for Pepsi, or Nike, or anyone to use any song they want without the band's permission or paying royalties, since the effect is no different" or something to that effect.

My dad was in the music biz right before and after WWII, and based on my talks with him, I've come to the conclusion that pre the mid 50's, recorded and broadcast music existed as a promotional tool for the way musicians made a living - by performing.

That inverted, and through the last decade, performance, while a nice business in and of itself, because margely a promotional vehicle for the sale of records and discs.

It's inverting again, and the old model, whereby performers made the bulk of their money - actually, let me correct myself - whereby the music industry made the bulk of its money - from the sale of discs is about to invert again.

Clearly 'all content wants to be free' is a pipedream, in which we're subjected to an endless stream of amateur or advertising-laden content.

There are a number of alternative paths out there, most of which have to do with connecting the artist to the fan using a variety of paths.

Obviously, I have no idea exactly where this goes...obviously, I'd be consulting for megabucks to the Indistry if I did. But it's not gonna look like it did 10 years ago, with files shrinkwrapped instead of discs.

A.L.

Marc, if you're still out there, sorry, I somehow missed your comment. Don't misunderstand my "self-interest maximizers," construction. I didn't mean it as a psychological description of Dr Frank or Bob Mould or whoever...I didn't even mean it as a behavioral description, although I think I could make a decent case for that. My attempted point was something like what Dr. Frank said...making records costs money, which must come from somewhere...without a record market...? I'm not inclined to believe that folks who can get free music with immunity will buy that same music out of the goodness of their hearts, enough folks to sustain the thing anyway...or that enough other folks will eat the cost of making a record in some other way. Partly it's intuition, but it's also that history supports this view pretty well, making sane assumptions about what could constitute a quality counterexample.

Also, sometimes economic jargon goulash is a good way to flush out the "economic constraints that apply everywhere else don't apply to this special place" type responses...I may have been fishing just a little...not that anybody took the bait. Bastards.

Here's a question for you though. When was the last time you bought a second copy of record you really loved, excluding whatever vinylphile type purchases? Third copy?

Hey A.L.,

Thanks for stopping by. You're right of course that we won't be seeing little shrinkwrapped files, and that it's hard to say where all this will go. Payment-optional "content" is not sustainable (not if you want the content to keep coming), so some solution will have to be found. I imagine that, as I think I said before in one of these comments, the digital distribution method that will win out will be the one that is most convenient and transparent from the user end. That is, one that makes acquiring the music and paying for it part of the same easy process. Something like the iTunes store, where it's built into the system software, and the consumer doesn't really have to think too much about it, and where a good design and useful features make it more convenient than the "free" methods.

However, the apparent cost of such an arrangement would have to be very low indeed to attract enough customers to stay afloat and to compete with "free" on any level. So, in this theoretical hard-copy free future world we're positing, the costs associated with developing, producing, and promoting an album of pop songs would have be disguised, passed on to the consumer without the consumer realizing it. Once again, I think we're looking at advertising as the means to do that. And as I've argued, I think this is a potentially pernicious, unlovely avenue for small-to-middling, quirky, or unproven artists and people who like the sort of music made by small-to-middling, quirky or unproven artists. Commercial radio provides an instructive parallel: the kind of programming that makes for the best or most efficient use of advertisers' budgets isn't necessarily the best or most interesting programming. Most of the (in my opinion) best music being made these days never has a prayer of being played on the radio. So how will the non-advertiser-friendly bands manage to afford to go into the studio? (In the "old days," they could pay for it by selling records, but we're ruling that method obsolete in this thought experiment.)

I agree with you about the shift in emphasis as to the primary use of recordings vs. performances. (Nicely put, by the way.) I'm not so sure you can say it's "inverting" to the old, pre-60s model, though. This year's model is something very different than either, it seems to me. You're leaving out an important factor in the first change, though: the emergence of the singer-songwriter in the 60s, and the phenomenon of pop music performers writing their own material as a rule. In fact, we're letting the word "musician" do double duty, in a way that, perhaps, obscures the issues a bit. "Musicians" aren't just performers, but writers, composers, authors. However they are used or exploited by performers, the songs themselves have, and ought to have, value. The value of songs as songs, with their profit potential centered in objects that can be bought and sold (as opposed to their related value as material to help "sell" or "brand" a singer) predates the recording industry; the sheet music business was an early version before the advent of "canned music." Preserving the rights of writers to profit from their work is no frivolous thing, nor is it a novelty. It's in the Constitution. It seems to me that it is a practical imperative, as well as a moral one, to try to preserve the intrinsic value of compositions themselves. If you can use a recording of a song you've written to promote your live show and sell more tickets, more power to you. But if people make use of a song (or a book or a play or photo or painting, etc.) it's only right that the author get something out of the deal. I don't agree with the idea of suing individuals (that's nuts) but neither do I know what should be done.

Anyway, you can't make enough money to record even a modestly budgeted album from doing small-club tours. You just can't.

The reason the music business is in the toilet is because kids are listening to their parent's CDs.

Bad product = low sales.

File sharing is not the problem. Even if it is how will you stop it?

The music business is often fun. It is not often profitable. Because of changes in technology profits became harder. Tough.

There was a time before recording when profits were similarly tough. Then with the record a single performance could be much more profitable.

Live muscic is becoming the most profitable part of the music business again. Other than the harm to entrenched interests who think the world owes them a living because previous technology supported their business model I don't see a problem.

Maybe there will be more regional music because bands can no longer afford to travel.

Mr. Simon, with respect, I believe your first statement is quite wrong.

Your second statement, too, is hard to credit. "Bad product = astronomical sales" just as often. Or did you like "My Heart will Go On"? Depends on what "bad" means to you, I guess.

#3: I agree. Whether or not it is "the" problem, or even only a problem, you can't stop it.

#4: A sound recording of the type we've been discussing isn't simply a recording of a "single performance." Recordings can be, or try to be (and even sometimes actually are) works of art on their own, often having nothing to do with how the song might sound live. Making such recordings is extremely expensive, requiring an investment beyond the means of most individuals. You have to borrow the money, on the expectation that you'll be able to make enough to pay it back. Or close enough so that you can get someone to loan you the money a second time. It's tricky. I say: anything that makes it tougher for little people like me and Ben to continue making such recordings ought to worry people who like that sort of thing (i.e., people who like albums by artists who are not part of the mainstream showbiz machine.) Maybe you don't care about that, and that's fair enough. But most of the people who have been involved in this particular discussion fall vaguely into the category of those who would like to see people like Ben and me be able to make more records. The argument is over whether unauthorized copying actually has such an effect, or enough of one to matter. If you'd just as soon see this feeble tendril of the "record industry" wither and die, that is again fair enough, but then we're not really talking about the same thing.

I don't think #5 is true either. The most lucrative avenue for music these days is indirect use by other media to sell other products, licensing of recordings and images to films, tv commercials, promotional campaigns, etc. I know of no one who is seeing a huge increase in show attendance or profitability these days. Quite the contrary, in fact. The bad product effect again, no doubt.

I don't think the world owes me a living. (I'd be in big trouble if I thought that.) But I did write and record a whole mess of songs. My position is: when someone acquires copies or makes use of compositions in some way, the author of them should get something. It seems only fair, and it is in the Constitution if I'm not mistaken. What are you saying then, that just because someone develops an efficient method for digital compression all copyrights are void and all "content" suddenly becomes part of the public domain? That because an author isn't getting paid for the use of his work, then it follows that he ought not to get paid for it? That's pretty extreme.

And finally, as for your dystopian vision of some future Land of the Local Bands: God help us.

Simple Simon,

Dr. Frank disposed of your half-witted diatribe too diplomatically...

"The reason the music business is in the toilet is because kids are listening to their parent's CDs."

Unless you can cite some stats to back it up, this claim isn't worth the shrink-wrap off yo' momma's Grease soundtrack.

"Bad product = low sales."

Circle the correct answer:

(a) False
(b) Tautologous
(c) You have the musical palate of an Otis elevator.
(d) Both a & c.
(e) Both b & c.

(This will be on the test)

"The music business is often fun. It is not often profitable. Because of changes in technology profits became harder. Tough."

Appending the word 'tough' to a pair of descriptive statements does not make an argument. As Schopenhauer said to Hegel in The World as Will and Representation, make an argument or shut the fuck up.

"Live muscic is becoming the most profitable part of the music business again."

Cite?

"Other than the harm to entrenched interests who think the world owes them a living because previous technology supported their business model I don't see a problem."

What the hell are you talking about? Name one other situation in which someone's expectation of rights to (or contractually specified compensation for) a ware she produced would be reasonably describable as "thinking the world owes you a living." The only sense of entitlement here is that of the mp3 thieves. Skim the facts first next time you get an itch to start brandishing cliches.

Hey there Spacetoast - just saw your comment and question to me. To answer your direct question, "When was the last time you bought a second copy of record you really loved, excluding whatever vinylphile type purchases? Third copy?" I can answer that I bought a second copy of Scared of Chaka's 'Hutch Brown Sayngwich' last month. I'd worn out the previous copy. And why are vinylphile purchases exempt? Okay, I don't actually know what you mean by vinylphile... I like vinyl. Enough to append that ubiquitous greek suffix? Uh, I don't know.

But to the more important question: you asked why Frank or Bob Mould or their disaffected love child who's practicing right now in his mom's basement would make music now that the 'record market' is vanishing. Well, i'm not ready to concede that. I know Frank and Ben are worried that it might, and they have every reason to do so, but I haven't seen any evidence that directly fingers PTP as the primary cause of the record market's weakness. Why am I so reluctant to blame file sharing? Because the weakness in record sales began before the whole innernut thing took off - before the widespread use of Netscape, never mind Napster (to say nothing of Kazaa). Certainly the RIAA has jumped on the meme that PTP kills record sales, but then they have every reason to do so. They can get their congress critters to give them 'relief' from something that may or may not have resulted in significant harm.
We all know that piracy is a form of theft, and we all know that there are bad arguments strewn all over this debate, many of which make up for a lack of logic with utopian/dystopian rhetoric. But part of the reason you were able to dispatch mr. Simon's arguments was that he wasn't big on providing data to back up his assertions. That's all I'm asking for, really. At this point, that may be unreasonable. It's simply too new to extract USEFUL data and make predictions about the future of the music biz. I remain an optimist, however. It is my nature.
till next time, Mr. Toast,

mw