How the Wolf Will Survive: How Musicians Make a Living in the Streaming Era

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David Byrne thinks musicians are doomed by streaming music.

More music is being made and listened to with greater frequency, diversity and depth than ever before in human history.

But musicians are doomed.

Here are my issues with Byrne’s flimsy refutations of “counter-arguments” to building a business around free access to music:

“1. Recorded music -— and especially the idea of making money from it —- is so 20th century. Suck it up and move on.”

If not by selling access to recorded music, Byrne asks, “what is the alternative model for making a living” for musicians?

First, there’s the assumption that all musicians make money from recordings. Let’s acknowledge the many composers and performers who aren’t recording artists that are already making livings without exploiting their sound recording copyright.

Second, let’s also acknowledge that musicians never have earned 100% of their living from recordings. The bulk? Sure. Performance is an important and fast-growing part of the industry. Bands can and do produce and release successful albums in totality without any “team” helping them.

Third, there’s a complete lack of understanding as to how value is created around free access to music these days. For being such a musical visionary, Byrne doesn’t seem to realize that a new music business is dawning where fans directly patronize artists and fund their works. This is the era of the niche artist supported directly by the fan, the rejection of the hit song economy. It’s time to question corporate-hijacked copyright and government-decreed royalty entitlements as the basis of musician income.

Nobody thinks crowdfunding will “replace” royalties, that’s not the point. The point is that government-decreed, corporate-lobbied copyright exploitation rates are anachronistic in the digital age. We need new models. Byre, Lowery and the pro-copyright pro musician (but not necessarily pro-musician) cabal perpetuate the myth that music career failures are due to external forces (“piracy”) and not their own failure to adapt.

Alarm over the idea that value is shifting from the song to the fan is understood but unwarranted. Think beyond the numbers you see getting smaller on your royalty check. Right now, at this very moment, musicians are thriving. Byrne is the minority. We laugh at complaints about your royalty check, the epitome of a first-world problem. Most musicians never see a royalty check. Not because their music lacks quality or an audience, but because they don’t understand the music business, and the whole thing is set up to exploit them. Literally — copyright exploitation is how the old model derives value.

Thankfully, that will soon be behind us. The new model (well, really the “original” model of music before intellectual property law existed) derives value from the direct relationship between artist and fan. Technology brings us back to that model by allowing for songs to be produced, marketed and shared at costs that continue to diminish. We are all connecting, and the copyright regime is more of an obstacle than a boon to musical creativity and productivity.

Yet despite three labels owning ~70% of the rights to the world’s music (thereby largely dictating the terms that streaming companies do business), musicians aren’t just surviving, we’re thriving. More recordings are being made than ever before.

Again, for such a tech-conscious person, how can Byrne miss the recording studios in every musicians’ basement? How can he miss broadband and mobile? A world of ubiquitous, free flowing music. Each song an opportunity to be heard, and an opportunity to be paid.

Recorded music still has great value. Free or near-free access is not a genie that’s going back in the bottle, nor should it. Free access to music is best for most musicians and all fans. Some pros will get smaller paychecks — particularly those who relied on government-decreed royalty entitlements and lawyer/manager fees for squeezing blood from the stone-cold labels. That paradigm is shifting in a more ethical direction, and we should be championing it by adapting, not wringing our hands in paranoid nostalgia.

“2. The move to streaming services as the principal means of music consumption inevitably does some damage. That’s how the world works and how things progress. Progress is disruptive. One simply has to adapt to the inevitable.”

Well, yeah. Duh. Nothing is ever black and white. There are going to be benefits and drawbacks with any major change like this. Progress is both disruptive and inevitable. We have to look at whether digital music is a net positive or negative, and I continue to be stumped by folks who think music or musicians are at risk in a world of abundant creative production. The only thing being devalued is gatekeeping access to music, and there are numerous other revenue streams that musicians today are tapping into to power their careers.

Byrne makes it sound like all of the sudden, every musician doesn’t know how they’re going to make a living. All he has to do is take a look at the musicians succeeding by straddling the old model and the new, rather than fighting the future, which by definition, is inevitable.

Byrne goes so far as to categorize a group of people as “digital and technological inevitablists”, which won’t pass a spell check.

Some deaths are inevitable: The rotary phone… the fax machine… recorded music “ownership”. I mean, we’re not still using sharpened rocks to cut our meat?

So, obviously, Byrne says, “the content will run out eventually” if sound recording copyright loses its value.

Say what now? More music is being made and heard than ever before. On the whole, most musicians are taking advantage of the changes in the music business. There is a small but vocal minority of Byrnes and Ribots simply aren’t connecting directly with their fans and offering the kind of value that would render these worries of selling access obsolete.

Musicians are not under threat just because the musicians who can’t figure out how to switch from copyright exploitation to something else are blogging a lot about it.

Thousands of established artists have already embraced crowdfunding and taken control of their careers. They stopped wringing their hands and got them dirty taking control of their own careers.

“3. Scale will make the difference. Your concerns and fears are premature because if these services are allowed and encouraged to grow and reach their ultimate potential- they will be 20 times larger than what they are now in North America —- then artists will indeed make a decent living from this music consumption model.”

I don’t think anyone believes musicians will make a living solely from streaming music, or that streaming music will dollar-for-dollar replace CD sales or downloading.

I also think any reasonable person sees streaming music having endemic financial problems, even as it scales to enormous user bases. The record labels are just squeezing too much juice out of the system for tech companies to make a decent profit.

Byrne obviously doesn’t realize what he’s saying here: “Monopoly, however, has not historically been good for consumers or for innovation -— regardless what tech companies say. Power corrupts; it’s a given.”

So… uh… this is awkward, but, you know copyright IS a monopoly, right? The very right you’re defending has historically not been good for consumers or for innovation. So, yeah, thanks for making my point for me.

Byrne ends on a note that we need more transparency, which most people in the tech world agree with and are striving to provide. Meanwhile, ASCAP and BMI have magical secret licensing calculations and the labels hide from their artists everything they’re not legally pressured to show.

“4. The Internet has been good for artists’ independence. They are freer now than ever before -— they can record more cheaply and even control their distribution, if they want to.”

OK, so Byrne knows about the democratization of recording, distribution, marketing, sales, merchandise, instruction, licensing, and publishing.

Obviously a bad thing.

Byrne: “artists can’t really do a homegrown version of the on-demand streaming model.” Actually, they can and are actually doing that right now as we speak. Rabbit Rabbit and Deadmau5 are just two examples. I think it’s the future of all music. Bam! I just gave you the next big business plan in music. That’s how wolves… musicians… whatever… will make money as music streams like tap water. Each one of us will have our own branded “channel” where we directly engage and monetize fan relationships. This is a practical, logical way artistic control can be preserved in the transition from copyright exploitation to direct fan patronage. But it’s much more fun to say the sky is falling!

Oh, another understatement of the decade: “There has been a flowering of creativity and possibility somewhat thanks to the web.”

That’s like saying, “There was a great deal of reading and writing somewhat thanks to the printing press.”

Byrne is missing the point that the web is us. I’m all about respecting my elders but I’m not sure we should be taking cues for the future of music from a 61-year old who stands like a pale, naive foreigner amongst the digital natives.

“5. Streaming services are like broadcast radio, which music folks worried about at first, but eventually decided that it actually helped promote musicians work —- so some fees were waived.”

When broadcast radio came along, it threatened and co-opted labels. RCA bought Victor in 1929. The labels came fighting back, and a decade later we had BMI opening to lure artists away from labels and onto radio-owned properties. The standoff was settled by the government and that’s why we have this ridiculous entitlement system that was always broken and is now crumbling.

Eventually labels used payola to buy out radio and control the music marketplace and were able to get a final leg up on on radio, but not before they dumped a huge portion of their profits into independent promoters who greased the palms of broadcast programmers.

Today, corporate ownership of media and record companies is so consolidated, most negotiations are done behind closed doors with no input from musicians whatsoever.

This is the industry Byrne is defending in his piece.

Suggestion #1: “What if there was no free on-demand streaming (unless the artist is directly controlling that access through their own site or as a publicity endeavor).”

Byrne answered his own question, he just put parenthesis around the answer for some reason?

If you were being serious, then we have a unicorn to sell you. There is no world in which free on-demand streaming of music does not exist. Or rather, there is, and it’s a scary totalitarian dystopia where we’re likely to have bigger problems that stimulating musical productivity and creativity.

Suggestion #2: “Artists should get 50% of the income streaming sites now pay to labels”

Ha ha ha. We have a herd of unicorns to sell you.

Why does a post demonizing the music tech industry pose a solution that points out the real exploiters, the big three labels? Music rights corporations and industry organizations are clearly responsible for low musician wages, not tech companies.

Suggestion #3: “The artist should have approval whether his or her work can be used.”

Again, this is a label problem, not a tech company problem. Independent artists have total control to pick and choose each individual distributor. This is widely known… most musicians are independent. Welcome to the future of the music business: independence. It can be scary for people used to mailbox money, but we like it.

The only way to have total approval over whether your work is used is to not make it. Music is free. One way to create value around it is by controlling access through copyright law. But don’t confuse music with copyright.

Suggestion #4: “Transparent accounting and data sharing.”

Again, the labels are obfuscating. The tech companies are trending more transparent.

Is this whole thing just a Machiavellian scheme by labels to transfer their unethical history of corruption and exploitation onto a tech industry that wants to turn consumers into creators?

What is Byrne thinking? If the musicians that look up to him follow his lead, they’ll be more broke and confused than they were before they started blaming their own fans for destroying their music careers by sharing their songs out of pure love for the music.

Back to reality, folks!

photo credits: wolf by Arran ET; microphone by Paul Waite

Stop Confusing Music with Copyright

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Imagine a world in which there is only bottled water. Then, quite rapidly, changes in technology connect every household to a municipal water line so they can have tap water.

Suddenly, you don’t have to pay for water every time you want to drink it. And even though you’re paying a small monthly fee for access to the municipal water line

This is what’s happening in music. We’re hooking up and turning on the taps. We’re reclaiming the water as a public resource.

Recently there was a putrid click-bait post on Digital Music News titled “Why Streaming Music Isn’t Like Bottled Water“. It’s part of a trend — albeit a trend quarantined to snarky music bloggers and obscurity-fearing professional musicians — to paint streaming services as the great evil.

What bothers me the most about knee-jerk demonization of tech companies is that record labels are really the ones to blame. It was the labels that used lawyers and lobbyists to bring copyright under corporate control. Don’t hate the industry that’s trying to make it more fair!

I would agree it’s naive to think tech companies would have anything but their bottom lines in mind when it comes to decision-making, just like the corporate oligarchy controlling music copyrights. Nonetheless, look at all the great music that has come out of the labels despite them being largely evil empires. The same will be true of tech companies, but they still have a long ways to go before they can compete with the unabashed exploitation of musicians at the hands of the labels. Remember McLuhan: “The medium is the message.”

Sure, making music more fair means the 1% of musicians who earn 95% of the profits in the music industry are going to have to take a hit to their paycheck. That’s the shift caused by technology in many corners of society, in music it is embodied by the streaming services. The record labels are the ones who want to see the 1% hold on to their money, because they collect over 50% of their revenue before it makes it to the artist! Who’s screwing who?

Back to bottled water. It’s been a popular thing for technologists to say that “music is like water” because… well… it is. It’s kind of common sense and obvious. Tens of thousands of people have agreed. This is why the click-bait trolling article was written in the first place, like a kid kicking a bees’ nest.

If you visit the link, you’ll notice I started to refute the article point by point before getting overwhelmingly bored. I’ve been fighting against the trolls who demonize the music tech industry for years. It’s getting tiresome. What’s more, the world I talk about — the world in which music flows like water — is already here. We’re never going to regress back into the world that the copyright maximalist musicians are trying to complain us back to. This much is clear in their total lack of advancing any workable solutions for increasing the value around music.

Here’s the problem: Musicians (and many others) are confusing copyright with music.

Music is Free

If you don’t understand why music is free, please take a second to hum a song. Now try to put a price tag on it. You can’t. You need some sort of way of gatekeeping access to that song in order to create value around it. There are two ways: build a fence to keep people out, or build a fence to keep people in.

Copyright is the fence built to keep people out. Patronage is the fence built to keep people in.

Copyright Productizes Music

Copyright has been the way we’ve generated value around music for roughly 200 years, first by protecting sheet music, but most importantly by protecting the song recording. For the first time in the music business, the gates didn’t have to be physical to create value around song. Prior to the invention of the recording, the only way to create value around music was to attract patronage — the main way of doing so was to be paid for a performance. The way to create value in a performance is to charge those who pass through the entrance. The gates were physical and literal.

With copyright, the gates became more like music — ineffable, conceptual. Over time, listeners and musicians were brainwashed by the copyright industry to combine copyright and music into a single concept — “sonic product” — the idea of music as a product to be packaged and sold like any other consumer good. The free music, like that on the radio or TV, was just promotion for the sale of the product — a free sample.

But the product of music isn’t like consumer packaged goods. The “packaging” is copyright, a law that you can’t touch, smell, taste or hear.

That’s where the bottled water analogy comes in.

Streaming music is tap water in a world where bottled water used to be the only choice. Oh sure, you can saddle up to the water fountain of radio, or the office cooler of music television. But to have on-demand access to the water that you want, a bottled-water system makes no sense when tap water technology is here. Sure, plenty of listeners will continue buying bottled water because of its perceived convenience or quality, the rest of us are thirsty and just want a drink.

We’re undergoing the same kind of fundamental shift that happened when music moved from performance to recording, from patronage to copyright.

Of course, the multibillion-dollar bottled water will fight with all its might to protect its profits. This is the true crisis in music — corporations ruining music just for profit. Tech companies are also trying to profit, but they’re doing it by building walls that keep people in, not walls that keep people out. The tech industry is building the music taps, the listeners want it, the musicians want it — only the bottled water industry wants to fight it. Unfortunately, the bottled water industry (and the labels) have lots of money and lawyers to ruin society with!

We need to stop confusing copyright with music. Music exists independently from the access-control mechanisms we use to create value around it. This is not to say the forces of business and technology have no role in shaping music. Quite the opposite is true — we tend to underestimate just how much commerce and technology shape creativity.

But when it comes time to talk about what music really is, the cacophony of music bloggers and complaining professional musicians drowns out the truth.

Music is like water. It’s a free but precious resource necessary for human life that must be maintained and made fairly accessible for humanity to progress. And like water, it is constantly under threat of corporate control for the best interest of the corporation, not society.

The record labels are the water bottlers. You pay a premium, and you feel it in your wallet every time.

The streaming services are the tap. You pay a small monthly fee, and metering makes sure the costs and revenues are evenly distributed.

But guess what? The water analogy doesn’t stop there. Do you see the ocean?

In the music analogy, the ocean is the sea of musicians — the majority of musicians — who don’t make a penny playing music. Forget money, they don’t even get a chance to be heard.

Right now, the sea is undrinkable unless you build an expensive system to filter it. This is exactly where the music industry is right now. We’re trying to figure out a way to filter the millions of musicians playing across the world and deliver something of value to the listener. Or, in water terms, we’re trying to desalinize the ocean.

We’ve come to define the hit song as the pinnacle of music, but that’s not true. The pinnacle of music is in every musician being heard, whether it’s by one person or one million. We’re getting there, and it starts with moving past the bottled water industry.

Even as mainstream culture grows even more monolithic, one by one, people are waking up to this new way of thinking about how we create value around what we create. Control is moving from the corporation back to the individual as profit takes a backseat to community. Music isn’t a product to be sold, it’s a service we provide to each other.

It’s the most exciting time to be a musician… and it’s a pretty exciting time to be a human in general.

So pour yourself a nice, tall glass of tap water and toast to the future of music, where all musical thirsts are quenched!

Spotify Artist Payment Transparency Challenges Corrupt Music Biz Status Quo

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At last year’s Rethink Music conference, I peppered Spotify CEO Daniel Ek with questions about their failure to be transparent about artist payments. I saw the makings of what would be a PR nightmare for the company in 2013, just as the now-infamous artist payment infographic started making the rounds.

Spotify must be finally listening to public opinion, because it has started an all-out assault on all the negative press it’s been getting. Mainstream artists like Beck and Thom Yorke have been complaining in public about how the streaming music model simply doesn’t work. Documentaries are being made about the so-called “demise of music” (utter rubbish), mostly filled with more complaining artists that provide no solutions, only ire. Spotify is often the voodoo doll in all this streaming music hate, though a special place in hell is reserved for Google and their indexing of file-sharing websites.

The new Spotify for artists website is ground zero for musicians to learn about how Spotify really works (at least, how its PR staff would like us to think it works). I recommend checking it out though, because so much disinformation has been spread about streaming music royalties.

Still, we’re missing the big picture here — not surprising since we’re talking about the music industry. One of the cardinal rules of the people who make the majority of money in music (hint: it’s not the artists) is to obfuscate all the financials.

That’s why Spotify’s move toward greater transparency is pretty amazing. I’m led to believe it’s just beginning, with the company planning on offering automatic audits of royalty payments so artists can see exactly what they’re earning.

Let’s recap how the music industry traditionally worked so we can see how lack of transparency is one of the roots of artist exploitation. This is not the path every artist takes, but it is the status quo:

1. An artist’s music and career shows promise, either by gaining popularity, having the right industry connections, or just being an act that’s profitable to “sell” to the public.

2. Artist signs the rights to their music over to record labels and/or music publishers so they can be exploited. They hire multiple team members to handle various aspects of their business, each taking a cut.

3. The majority of artists never see a dime because they never recoup the cost of producing and marketing their album, which is required before receiving royalty payments from their label. Even then, their payments are a small percentage of total revenue. Publishers take 50% of all licensing revenue. Managers take 10-25% of most revenue. Booking agents take a similar percentage of ticket sales. Other royalties are collected by PROs like ASCAP and BMI, who keep a secret percentage of all revenue to pay their employees, fly them to conferences on exotic islands, and otherwise run the business of collecting and distributing artist revenue.

4. If the artist is in the right place at the right time with the right people, they may be lucky enough to sustain a career, even after all the percentages and cuts are taken out of their revenue stream. At this point, the rights to their music are worth exponentially more than they were when they were signed. Unfortunately, the way the record labels operate — and the way they have lobbied to structure copyright law — means that artist rarely gets to cash in on the true value of their music. The labels, lawyers and businesspeople are the true profiteers of the music industry. Worse, the musicians and their music are treated as mere product to be sold and consumed. This is the true devaluing of music — exploiting artists at a low point in their career while simultaneously reducing music to another consumer packaged good.

The music industry, on the whole, is still unquestionably corrupt. As we all know, transparency is toxic to corruption. Shining a light on secret practices benefits us all.

All the traditional players in the music industry are stained by mostly hidden corruption. There’s a rich history of collusion, price fixing, price gouging, payola and other patently illegal practices that almost always result in settled lawsuits and no admission of wrongdoing. (The same practice has infected virtually every large, modern industry — corporations are really just instruments to gain market favor and profitability.)

Record labels are well-known for stiffing artists on millions in royalties  through backroom accounting, legal loopholes and business-savvy manipulation. Even the PROs — vigilant protectors of artist’s rights to profit from the exploitation of their work — have a totally secret formula (some say no formula at all) for paying artists. We really have no idea what percentage ASCAP or BMI is keeping for itself. Even worse, because the labels and broadcasters and other multinational media conglomerates have the most leverage with PROs,  the average independent artist is gets screwed — in the dark, thanks to the lack of transparency.

A minority of artists hate streaming music largely for two reasons:

1. They see their royalty payments shrinking.

2. They equate this with the “devaluing of music”

At the Future of Music Summit this year, the theme was basically “is music being devalued?” Those artists that saw their royalty payments shrink generally answered “yes”, those who saw them grow (like most musicians) answered “no”.

Here’s the deal: Music is not devalued by streaming technology. First of all, the value of music should not be measured in dollar signs. I know that seems a little kumbaya-ish, but it doesn’t make it untrue. We musicians and fans know that the value of music is in how it shares experiences, creates bonds, provides catharsis, sets a mood, heals our psyche, etc. One cannot equate (as anti-“piracy” advocates often do) the value of music to the value of a consumable good like food or energy. Music is not consumed, it is free. Labels package it and market it for sale, but it is never actually consumed. It is free to share, free to listen to, free to be played.

Over the last 100 years, the music industry has set up barriers to sharing, listening and playing in order to profit. This was done ostensibly to protect musicians’ ability to make money and thus continue playing music, but a quick glance at history shows the utter hypocrisy of this view. Shadowy accounting, non-transparent business practices, litigation and legislation aimed at grabbing a bigger piece of the pie — these are just a few of the corrupt actions that are status quo for those that exploit musicians for profit. This is the real devaluing of music.

Let’s look at the actual market value of music. Surely we can agree that the market value of music is going down?

Absolutely not. The market value for music is actually rising.

What’s devalued — in the sense of the market — is paying for access to music. Copyright creates the barriers that prevent sharing, listening and playing music. Corporations control these barriers through technology, law and the market. The technology is the apparatus of control. The law (such as the perpetual extension of copyright term length) is the framework that prevents technology from getting too far outside their control. The market is what allows them to acquire music rights for next to nothing, and then reap all the benefits (and to be fair, suffer the risks) of inflating and exploiting the value of those rights.

The ‘Wizard of Oz’ pulling the strings on the whole facade is still the record labels — primarily the majors that own ~70% of the rights to all music on the market. Is it not plain to see that the last decade has been about the labels using streaming music to rebuild the industry of exploitation, to stem the bleeding that free access to music inflicted on physical sales and downloads? Is it not totally obvious that artists should be complaining about their onerous contracts, the ones that take all the value out of their rights and leaves them with a small percentage?

The always incredible Billy Bragg is just the latest artist to point out that the artist uproar over Spotify payments is ridiculous, given that the labels are the true culprits of artist exploitation. We need more voices like his.

Here’s why the Yorkes and Becks of the world are upset: they sold out their rights for large royalty checks that are now shrinking. They’re 100% wrong to point the finger at streaming services. Come on, who do you think negotiated those royalty payments in the first place? The reason these stars can’t blame their labels is that they are complicit in the exploitation business. As technology tears down the barriers to share, listen and play, the value of exploiting one’s rights shrinks. This is why big artists are defending their labels, crying that the sky is falling, and using fear and negativity to somehow scare fans into… what… buying CDs again?

This is the core problem of the “music is devalued” camp. They have no solutions! I’ve been debating these folks for years, and the only thing I’ve heard them come up with is “stop piracy”. If that were even possible — which it’s not — all it would do is protect the rights held by record labels. It does nothing to help most artists. It’s purely self-centered around one’s own paycheck. It does nothing to stop the system of exploitation, it only adds fuel to the fire. Regardless, study after study shows free access to music encourages sales.

That’s why Spotify’s move towards transparency is so important. It challenges the industry status quo of anti-artist secrecy and empowers musicians to actually see how their revenue is coming in. This is something that’s simply not possible with labels and PROs, unless you are one of the few artists with the legal or market might to apply pressure for an audit.

Transparency is coming to the music industry, and fans and artists are loving it. It’s actually increasing the value of music. Take another example: crowdfunding. In the past, artists funded their albums by signing their rights over to a label, and in return the label would take the financial risk of paying for its production and marketing. Of course, “risk” is perhaps a strong word, because most labels just let 9 out of 10 bands fail and then put all their money behind the one that showed market traction.

Today, artists are increasingly using crowdfunding to replace the role of the record label, at least from a financing perspective. With digital tools, bands can market themselves with virtually no budget. Distribution is democratized. For independent artists operating on small-business scales, there is less and less need for the exploitation of a label.

What’s best, crowdfunding is completely transparent. In the past, the fan would buy a CD but have no idea how much money got to the artist. Now at least they know that Spotify pays artists 70% of their revenue, comparable to iTunes. But crowdfunding is even better — on most platforms, fans see how much the album will cost to produce, and know that almost 100% of the funds are going to the band (the real figure ranges from 80%-95%, still a great improvement over the ~70% status quo).

Here’s the real key to this debate: the value of a fan is going up for artists. The value of a fan is going down for labels, because their revenue is based on exploitation and they have less opportunity to gatekeep. For artists now directly connected to their fans, crowdfunding is a viable and transparent way for fans to know their money is going to the artist. And because of that, they give a lot more of it. Nearly all artists who try crowdfunding find that instead of taking a small percentage of an album sale, they can make 10x the profit by taking money directly from a fan. Part of this is that the fan knows the money won’t get caught in the non-transparent, behind-the-scenes corruption of the music industry. But the fan also wants to feel like they are the label, like they are participating in the creation of the artist’s music. Patronage has far superior value to the fan than exploitation, not to mention its ethical superiority.

Spotify is trying to be a meritocracy. They want to take the whole royalty pool and split it up evenly based on plays. That’s why artists are seeing line items for thousandths of a cent. But it adds up. More artists are seeing their streaming revenue grow than shrink, but those who are seeing it shrink have market dominance and a loud voice. The exponential growth of crowdfunding and streaming music payouts is evidence enough. Anecdotally, I’ve seen my band’s streaming revenue double year over year.

Ultimately, I’m no grand champion of Spotify. I am in the camp that thinks they’ll never be profitable so long as the labels scarf up all of their revenue. Long-established streaming music sites like Turntable.fm are already being shut down by the music oligopoly for not scaling to big enough profits. I see access to music gradually approaching free again — the next step is already underway: the bundling of streaming music with consumer electronics. Eventually, music will be a utility like water — paid for by distributing the costs across the total population, and rarely a conscious expenditure. People still buy bottled water and folks will still buy physical product. But make no mistake: While large corporations will fight it with every lawyer they have,  no one can stop the web from bringing music on tap to the people of Earth. With streaming music, we’re already seeing corporations reluctantly embrace freer access, so long as they can still negotiate their onerous terms for artist payment.

Let’s be clear. There are plenty of people at the labels and at the streaming music sites that are fighting the good fight for artists. They realize the system is compromised and corrupt, and they are trying their best to work within that paradigm to eke through positive change. But anyone who’s trying to fight this move toward transparency is anti-artist, period. Spotify may only be doing this to protect its bottom line — if they were true crusaders they would expose the labels as the reason artists see little of their streaming revenue. But the labels keep the lights on, and Spotify still thinks it can be the alternative to “piracy”.

Sharing, listening and playing music ought to be free activities, because they actually increase the value of music. Artists are moving past the point of needing barriers to exploit rights, but labels have no other choice. I expect the transparency wars are just beginning — and I will be there tugging the curtain down with millions of my fellow musicians.

TL;DR: Transparency increases the market value of music — it combats music industry corruption. Ending piracy is not a solution — it perpetuates the corrupt status quo of artist exploitation.

Future of Music Summit 2013: A Feisty In-Depth Preview

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I am beyond pumped to be headed down to Washington, DC next week for the Future of Music Summit.

The Summit is 2-day conference for music industry professionals and musicians, and is organized by the Future of Music Coalition. The FMC is a non-profit that advocates for musicians’ rights, and helps educate musicians on issues that are important to them, even though they may not realize it. Besides giving musicians a voice in Washington, they may be best known for their Artist Revenue Streams research project that gives incredible insight into the details of how musicians make money in the digital age. The Summit will begin with the latest analysis on that treasure trove of data.

I’m also looking forward to the rest of Monday morning, where conference attendees will be serenaded by government leaders in intellectual property, followed by a counterpoint on copyright from musicians and music businesspeople.

I’d like to ask the copyright panels how they would reform copyright to balance the needs of the individual and the culture versus the need to profit from corporations who have all the legal and lobbying resources to shape the law. Shouldn’t we decriminalize song sharing by adopting some of the ideas successfully employed by Creative Commons? Don’t we have enough studies showing that “piracy” actually increases fan engagement and spending?

I would also question whether virtually infinite copyright terms perpetuated by corporate lobbying have anything to do with the original intent of copyright. I would ask the musicians if copyright exploitation is perhaps a less ethical business model than direct fan patronage, and now that technology has enabled the latter, we should focus on what technology now enables rather than stifling innovation to protect anachronistic models.

Finally, I would posit that free access to music is a net benefit for promoting all of the underlying tenets of copyright: the right of the individual to be compensated for their labor, the right to own and control one’s personal expression, the right of society to benefit from creative works, and the right of a culture to use those works to perpetuate itself. Has anyone noticed how our copyright system works against these ideals by hoarding wealth at the top, appropriating our personas, creating a large deadweight loss in music consumption and denying cultural re-use of creative works, in a culture increasingly based on re-use?

All that will probably have to wait for the cocktail party. Maybe I can get the person who curates the copyright panels drunk and you’ll see me and Larry Lessig up there next year wrestling some lawyers from the Copyright Alliance and the Center for Copyright Information. The gauntlet has been thrown.

The lunch breakout session is the “Band as a Business” workshop, which is funny, because that’s almost the same name as my free “Band as Business” video course on Udemy. I reached out to workshop facilitator Paul Rapp when I realized he was 2 hours north of me in Albany. I asked him why crowdfunding wasn’t covered, considering it’s the next big thing in how musicians can make money. I also dropped the whole copyright spiel on him, so maybe I shouldn’t be surprised I didn’t hear back. Looking forward to taking the workshop nonetheless, as there’s always something new to learn, especially for those who teach.

The rest of Monday is dedicated to the “Future” part of the Summit, where we’ll be discussing the cutting edge of music markets and marketing. I expect artist discovery and fan engagement to take center stage here. Over the last few years, we’ve really seen the music industry embrace the kinds of marketing best practices that were developed by natively digital companies. In particular, the idea of a “fan lifecyle” (analogous to a “user lifecycle”) is central to any modern musician’s business strategy. Success comes from identifying target fan markets, coming up with strategies to engage those fans, and then creating a system by which those fans drawn into an integrated marketing funnel, generating more revenue the deeper they go. Digital tools and services can go a long way to facilitate marketing and conversion, and I’ll be curious to see which names from that industry are dropped.

The last panel of the day is the one I’m looking most forward to — a discussion of streaming, crowdfunding, and the future business models of music. Most people are confused when it comes to this topic, and I understand why. But I’ve been a digital native all my life, and I’ve dedicated my life to music, technology and the intersection in between. The “future” of music business is, without a doubt, many different streams. The days of one dominant stream from copyright exploitation are leaving us. When we talk about the “old” business model dying, we’re not just talking about selling CDs or MP3s, we’re talking about paid vs. free access to recorded music, and things are moving inexorably toward free. It’s a net benefit for fans and musicians, and more music is being made and listened to than ever before. It’s awkward and sometimes devastating to professional musicians who are having trouble adapting, or who put their heads in the sand and blame their own fans for their career woes.

At the same time, the “new” business models like crowdfunding are revolutionizing the band as small business… and it’s all just the tip of the iceberg. We have seen but a fraction of the potential for new music markets and models. Perhaps if the market wasn’t mostly controlled by a handful of enormous corporations, it would be agile enough to shift. But no matter, individuals will flip the paradigm and enable new categories of paid musician that defy the dominant “professional” title. Indies will continue to innovate. The majors will hulk along collecting back catalog royalties until music is a utility like electricity or water… and we’ll be there sooner than you think.

We’ll need a drink after that one. Lucky for me, Mailchimp‘s buying.

The second and final day of the conference features a potpourri of unexpected topics.

A history and analysis of the crossfader “as a tool for re-thinking music as a form of social action” seems to jive nicely with my piece on how copyright law undermines the power of music to effect social change. With no de minimis standard for digital sampling, the crossfader seems to be regarded more as a nuclear weapon than a tool for social change by the record industry.

I’m also looking forward to the panel on music and social change. MC5’s Wayne Kramer (who makes an appearance in my Band as Business course) chairs a particularly interesting pursuit involving instrument donation to incarcerated people. I’m a huge fan of music charities, and music’s ability to provide meaning, healing, joy, comfort or entertainment to people who are aimless, suffering, unhappy, uncomfortable or just bored. It’s the reason we have music! Too often we lose sight of music’s true purpose in pursuit of profit. As such, the following panel on “Nonprofit Models for Supporting Independent Music” shares similar potential for being an awesome eye-opener.

Before lunch, the Director of External Affairs from the U.S. Department of Health and Human Services will run out on stage and scream, “Musicians can afford health care now!” and then disappear in a flurry of pyrotechnics. Or not. But either way, I can’t think of a better place to tout the Affordable Care Act than a conference for musicians, even if I can build a better website myself, for hundreds of millions of dollars less.

The breakout session I’m headed to after lunch is all about how we can provide a better career education to musicians. That’s my mission too! I just launched the Songhack website to do just that — educate musicians on how they can “hack” the music business and make their own careers. My work with John Snyder at Artists House Music (we did the Band as Business course) has given me a unique look into the realm of institutionalized music career education, and the huge challenges it faces. I look forward to gaining more insight from the panelists of this talk… because despite the best efforts of the FMC, most musicians don’t have any idea how musicians make money!

Tuesday wraps up with a more philosophical take on the issues from our distinguished hosts and a group of accomplished musicians. Diving deep on the cultural value of music with the Producer of Blue Oyster Cult sounds like a pretty sweet ending to me.

I’ll be missing the conference-closing NPR All Songs Considered Listening Party. Gotta hightail it back to New York to keep the entrepreneurial machine running. But while I’m there, I’ll be tweeting up a storm and posting daily updates, both here at Mediapocalypse and over at the Songhack blog. Please join me!

Are you headed to the FMC Summit? Do you want to tell me how wrong I am about free access to music and throw a drink in my face? (I know there are some of you out there!) Or have you seen the same bright future for music that I have, and want to join forces to spread the good vibes? Leave me a comment or drop me a line on Twitter and we’ll hang.

See you in DC!

Ad-Sponsored Music Piracy is a Mythical Threat to Musicians

David Lowery, musician with Cracker and Camper Van Beethoven supports Trichordist and is angry that recorded music doesn't pay like it used to. (photo: Clinton Steeds CC-BY)
David Lowery, musician with Cracker and Camper Van Beethoven supports Trichordist and is angry that recorded music doesn’t pay like it used to. (Clinton Steeds CC-BY)

A small but growing number of formerly well-compensated musicians are rallying around a new empty catch phrase: “ad-sponsored piracy”.

As far as I can tell, this idea gestated in the bitter womb of The Trichordist, an echo chamber for musicians who are too scared of changes in technology to discuss solutions. Instead, they spew dangerous propaganda about the “new exploiters” of musicians, namely technology companies. Though they continually remind readers that they’re “fighting for the artist”, though there seems to be no sort of plan or strategy other than complaining.

Look, I think we can all agree all types of businesses exploit people on a fairly regular basis. But I believe I’ve made it clear that technology companies are more ethical that the business forces that dominated music in the past. They are far from perfect, but at least they’re trying to find solutions.

The Trichordist went way out on a limb, grabbing screenshots of ads from major corporations being displayed alongside free music downloads of popular artists. This shock-and-awe tactic is presumably to incite fans to petition the advertisers to pull their ads from these sites.

Unsurprisingly, this attempt has backfired horribly. When the Dead Kennedys and Lou Reed posted the aforementioned Trichordist posts on their Facebook pages, their fans were quick to point out how stupid the posts were, and how out of touch Trichordist and the artists (or more likely, their embittered management) were for posting them.

Eric Kennedy wrote on the Dead Kennedys page: “…that shit is from a year ago, and I can pretty much guarantee that site doled out more viruses than songs. Stick to reposting whatever Black Flag is posting on FB in the future.”

Jay Conner added: “It is utterly astounding that somebody directly involved in the industry on both the business and artistic sides could be this uneducated about how internet advertising works. Particularly since he, you know, runs a blog dedicated to the internet and its ethics.”

Here’s the problem with so-called “ad-sponsored piracy”: it’s a mythical threat. It’s a fake problem cooked up by butthurt musicians who saw their market share crumble when the music business model shifted away from charging for access to recorded music.

I don’t have to get long-winded to prove it. Anyone with a basic understanding of how Internet advertising works understands that these ads appearing on these sites does not equate to companies sponsoring the site or its contents. It’s doubtful they even know where 99% of their ads appear.

And even if they did, anyone with a basic understanding of copyright law and how the Digital Millennium Copyright Act works knows that any site that makes available copyright infringing material must remove it immediately at the request of the rights holders. Reed and the Kennedys can play the victim all they want, but if they feel their copyrights are being infringed, they do have legal recourse to deal with it. Instead they are just complaining, and their fans are totally turned off by it.

Furthermore, even if we assume these sites were committing copyright infringement, most people understand that copyright law — and much of society, really — has been hijacked by corporate interests. In reality, free access to music is a good thing for most musicians because a chance to be heard is a chance to be paid. Pre-Internet, very few artists were heard, a minority were paid, and a tiny minority were paid fairly.

In fact, I think Lou Reed and Dead Kennedys would actually benefit from having their music available as a free download, largely by tech-savvy young people. If you look at the artistic merit of both these artists, I think popular opinion would agree they’ve been on the decline creatively or at least nowhere near the work they’re widely known for. Let’s say nine out of ten kids might come along and download “Walk on the Wild Side” and they hate it, or they like it but not enough to be curious about discovering more Lou Reed tunes (purely hypothetical, because kids stream music these days). One out of ten is going to love it so much they’ll seek out more, and along the way there will be plenty of opportunities to pay the artist far more than what they would make selling the track on iTunes to ten kids. That’s the new business of music, and it’s a much more fair shake for musicians than one given by the labels, lawyers and lobbyists of the past.

As for the Dead Kennedys? I’m sorry, but they’re not the Dead Kennedys if Jello isn’t in the band. He’s on record calling the band a ‘cash scam’ and that’s what the band is purely about now: making money. The art is gone. Forget musicians, fans are being exploited.

So you see folks, the myth of “ad-sponsored piracy” is really just the product of desperate musicians at the end of their careers. The primary purpose of copyright law is to create a rich and thriving culture — economic compensation is a part of it, but not the whole. Why would we deny thousands of musicians the right to be heard and to be paid just so washed-up artists like Dead Kennedys and Lou Reed (more accurately, their buisiness teams and labels) can squeeze some more dollars out of a good run that happened decades ago.

If The Trichordist were serious about fighting against musician exploitation, they would be fighting against the corporate corruption of copyright and fighting for Internet freedom. By their rationale, even Spotify qualifies as ad-sponsored piracy because of its almost non-existent royalty payments in the face of hundreds of millions of dollars of ad and subscriber revenue. But Spotify pays 70% of revenue to artists, just like iTunes. Somehow one is morally bankrupt and the other perfectly legitimate. It’s absurd. I’m no great champion of Spotify, but put up against iTunes they look like Mother Theresa. And like I said, music downloads are approaching their high water mark and will be all but a memory as a new generation grows up on streaming, so the myth is already hopelessly outdated.

In the future, I would like to see The Trichordist discussing some actual solutions instead of throwing tantrums. Talk amongst yourselves. I’ll give you some topics:

• Building a culture of entrepreneurship among musicians
• Crowdfunding as a way to finance an album without signing an exploitative contract with a label
• Marketing as discovery, not as manufacturing popularity or generating music sales
• Music for music’s sake, not as a product but as a service
• How digital services for musicians democratize the industry
• How digital technology dramatically cuts the expense of music production and marketing

Musician Exploitation: Who’s Really Responsible?

PlacidoDominco-IFPI-CC-SA
IFPI chairman Plácido Domingo bellowed as Rome burned.

Hang out for a few minutes and I’ll tell you why Grooveshark may be more ethical than Spotify.

Brief History Lesson

By suing Napster and its kin out of existence, the music industry elite created a “soft landing” for its multi-billion dollar business of selling access to recorded music. They couldn’t kill so-called music “piracy” (also known as song sharing), so they killed the nascent technology companies that tried to build a business around it.

To what extent have musicians benefitted from this business model? Until access to music became free, it was our primary revenue stream. But too often we got such a small piece of the overall pie. The record business was never particularly ethical, with its exploitative contracts, shady accounting and history of corruption.

Free access to music wiped these ethical dilemmas off the table with one click of a mouse, giving us a new debate over the question of whether music should be free to access and share.

Notice I didn’t say “free music”. Music isn’t free to produce or market, though costs have dropped considerably any way you spin it.

At the time of Napster, music suddenly was free to access with an Internet plan and a computer. It took the industry hundreds of millions of legal and lobbying dollars to finally stop the bleeding. In 2013, the slow death of physical media has been largely offset by the rapid growth of digital after a precipitous $3B drop.

The corporate music industry would be quick to tell you that suing innovative digital music companies and individual file sharers was all about protecting musicians’ revenue, that they saved our bottom lines. This is the same industry that coerced us to sign exploitative contracts, that price gouged and price fixed consumers, that bought off radio to play the same songs on repeat.

Nobody’s perfect.

But musicians are starting to wise up as they see the bottom line on their streaming revenue reports. To be fair, Spotify (and iTunes) pay roughly 70% of its revenue to artists (more accurately, “rights holders”, which are primarily the labels who exploit the artists’ copyrights). A lot of the negative reaction can be chalked up to failures in long-term vision — as the decibel point moves right in our royalties, the multiplier grows exponentially. But the current streaming royalty system clearly favors the big four major labels over the short and long term, because it is harder for independent, unsigned and emerging musicians to compete with their massive back catalog of perennially popular music and marketing budget to match.

Some musicians are coming around to bridging the art/business divide and becoming entrepreneurs themselves. They’re sick of having to rely on someone else exploiting their rights for increasingly less money. The Internet allows direct fan patronage in the form of crowdfunding, tipping, or selling both virtual and physical products from one’s own website. Home studio production is getting cheaper and better. Licensees are hungrier than ever for the latest music. Marketing is as easy as creativity > strategy > click. These aren’t empty catch phrases like “downloading music for free is stealing” and “piracy is bad”, these are realities clear to any musician working in the field today.

Yes, there will always be artists who dare not sully their art with business concerns, but they are an increasingly lonely breed. The new musician adapts to the meager streaming royalty stream not by petitioning for higher royalty rates from Pandora, but by embracing business models with far more promise than selling access to recorded music. If only the record business elite would step off. But there’s billions at stake and they like their yachts. Who can blame them? They’re the last generation of the American Dream and they don’t want to wake up.

occupy-london-article
What would Jesus stream?

Occupy the Music Industry

Revolution is blowing in the wind among musician culture, and the industry elite can smell it. The chairman of the International Federation of the Phonographic Industry is acclaimed opera singer Placido Domingo. In the IFPI’s 2012 annual report, Domingo titled his introduction, “A digital world that rewards artists and creators”.

Really? What about “a digital world that rewards the gatekeepers between artists and creators”. That’s really what the IFPI is concerned about. It doesn’t represent the interests of musicians, it safeguards the commercial exploiters of musicians’ recorded music copyrights. Let’s tell it like it is — the money trickles down through the cracks in their multi-billion dollar pavement. The markup on music remains artificially high to justify the expense of major label production and marketing. They also need to even out the variance from gambling on bands like derivatives traders.

What’s concerning is to see musicians jumping on the IFPI’s bandwagon, supporting the suing of technology companies, demonizing their own fans for sharing music. I mean, what do these musicians think is going happen? Are we going to all of the sudden roll the music industry back to 1996 when a CD cost $14.95 and you were forced to buy 9 crappy songs for every hit single?

“Of course not,” these skeptics will tell you. They love new technology, it just has to be applied fairly to musicians. Technology companies, they say, are even worse than the exploitative record labels, because they want to use your music for their own gain and pay you nothing!

It’s not even remotely that simple. Of course, there are plenty of digital music companies exploiting musicians’ copyrights. But it’s precisely because we’re still working within the model of copyright exploitation established by the labels.

Grooveshark is an exploiter. Spotify is an exploiter. And on the face of it, Grooveshark would appear to be screwing artists far worse than Spotify. Google has decided to blacklist them from certain search functions under pressure from the IFPI and its minions to fight so-called “piracy”. But Grooveshark has only been convicted in the industry, not in the court. They’ve literally been blacklisted from the industry for daring to question the status quo of corporate-hijacked music law and technology.

Corporate Hijacking of Music Law and Technology

The majors and some indies have refused to license their music to Grooveshark. As a result, the majors are trying to sue Grooveshark to death just like Napster or all of the other -ster’s they shut down with copyright infringement lawsuits. We know how well that worked — unauthorized song sharing only grew more popular. The industry’s well-documented and cyclical fight on piracy is the same kind of endless war the US is engaged in overseas. The industry has been fighting it for 100+ years and the only true goal has been to co-opt the developments of independent innovators rather than truly eliminate piracy, which is quixotic. (See the book Pop Song Piracy.)

Spotify and its ilk only use officially licensed music. But what happens when the legal system is broken? Copyright is supposed to protect our right to profit from our labor and to express one’s personhood. It’s also supposed to promote social and cultural welfare, and benefit the greater good by making creative works accessible to the widest possible audience. The cost for access is supposed to be high enough to incentivize creators to keep creating, while low enough to prevent a large deadweight loss, depriving the least amount of citizens from access to the work. These are the moral and economic foundations of copyright, and they’ve been hijacked — just like the political process, the food supply and our media — by large corporations.

In 2011, the four major labels controlled 88% of the market share for recorded music. That’s enough to make the Monopoly Man jealous. These labels own the rights to the vast majority of the music we listen to, and use their enormous legal and lobbying resources to keep it that way. It’s not some sort of conspiracy, it’s standard American capitalism, and the American way of music business is increasingly the way of the world.

Don’t Bring Back the $14.95 CD, Bring Back Napster

People rallied around Napster for two reasons. One was that it made it possible to access all of society’s recorded music for free. The second was that many music consumers knew they themselves were being exploited by major labels almost as much as musicians were. They witnessed a history of major music industry settlements for price fixing, price gouging and payola. They heard the stories of great musicians suffering because a label coerced them into an onerous contract. They paid $14.95 for one good song.

The music industry was incapable of embracing a world where all of society’s recorded music was available for free, even if that’s clearly what consumers wanted. (Most people at this point will say, “of course that’s what people wanted, people want everything to be free” to which I reply, “Yes they do.”)

As a quick aside, I believe music is closer to a necessity than a want — closer to food, affection, sex, shelter, etc. than a new TV or a Snickers bar. As a society we should endeavor to provide free and fair access to music — a Right to Music — on a humanitarian level. (Follow the link for more.)

Free access to music is good for musicians for one simple reason: An opportunity to be heard is an opportunity to be paid. Anyway, the best musicians make music in order to be heard first, paid second. The motivating factor of copyright and the potential of being the 1 in 10,000 musicians that become a rock star have been greatly exaggerated. If copyright law evaporated tomorrow we’d still be making music. That the music industry lost half its value and we have more artists creating more music than ever before is testament to this fact.

David and Goliath.
David and Goliath.

Grooveshark vs. Spotify

This all relates to the Grooveshark vs. Spotify ethics question, because Grooveshark is pretty much the only company of its size that believes access to music should be free (or nearly so.)

Spotify, and the dozens of other streaming services (many of them restricted to certain geographical regions because of licensing rights restrictions) believe that the way to save musicians is to increase payments to the labels that exploit them.

Sound familiar?

Let’s contrast two opinions, the first from IFPI chairman Domingo:

“…policymakers better understand that the internet does not make music “free”.”

Here we have a straight-up threat by the IFPI to stop funding politicians’ re-election campaigns if they don’t pass legislation protecting major labels’ ability to exploit musicians’ rights for maximum profitability. Spotify et. al. would agree with this statement. As we’ve observed, just because the Internet provides free or near-free access to music, that doesn’t make the production and marketing costs of music zero (though costs have inarguably dropped significantly).

Storm the Gates

It seems we are left with two solutions. The one proposed by the IFPI is to protect the gatekeepers by charging a monthly subscription fee for access to music.

I have no problem with this business model, nor do I think should musicians.

I had no problem with it back in 2000 when Napster brought us the technology and proposed the exact same business model. But too many salaries built from exploiting musicians were on the line, and they were sued out of existence. It wasn’t done for the musicians. It was for the executives, the lawyers, the lobbyists and the other business associates at the multi-billion dollar multi-national corporations. Any musician who thinks these companies have their best interests in mind are deluded. It’s not entirely black and white — I’m sure there are plenty of employees who do good and mean well. But even the legends that deserve our respect, like David Geffen, eventually had their ethics compromised by commercial forces. A cursory glance at music industry history clearly demonstrates why gatekeepers between the artist and fan are a really, really bad idea from an ethics standpoint.

Musicians had no choice but to put up with it to get paid. This is no longer true.

That’s why I like option #2 — free access to and sharing of music. (Free as in freedom not free as in beer.)

Let’s contrast Domingo’s threat with Grooveshark SVP Paul Geller’s vision on where the music industry out to be headed:

“…I think that we have to be creative about how to get more money into this ecosystem, because I don’t think anyone sees those numbers [streaming payments] and is really inspired by them, I think people look at them and say ‘well this is a soft landing for the music industry,’ it’s ‘hopefully we don’t have to lay off too many people.’ And that’s why I think that Grooveshark is out there trying to be creative about how to infuse the industry with more money in ways that I don’t think are commonplace right now.” (from Digital Music News)

Grooveshark’s technology and innovation was neck and neck with all the other streaming music sites a few years ago, prior to having to dedicate an enormous chunk of their time and revenue to fighting legal battles with the majors. They recently rolled out some nice new features to compete with the Spotifies, but it’s clear they are living in a legal and fiscal nightmare. Their CEO Sam Tarantino admitted as much while doing an interview for Grooveshark’s new Broadcast feature. I can only surmise by statements like the one above that the people at Grooveshark truly believe they are fighting the good fight. And why shouldn’t they?

Grooveshark does pay artists, it’s just that they haven’t reached a licensing deal with the majors because as of yet they’re unwilling to bend over far enough. To Grooveshark, the majors are just trying to extort them and screw musicians anyway.

If you’re an independent artist or label, you can register your music with Grooveshark and they will pay you a share of their advertising and subscription revenue. These payments may be even smaller than what Spotify can offer, but Grooveshark is also much smaller, and draining their pockets just fighting to exist. Legally, they are in the right, because the DMCA allows for a safe harbor to exist for copyright-infringing, user-generated content, provided the company removes this content upon request and the platform has other significant uses beyond so-called “piracy” (really just unauthorized sharing of songs… does that sound so bad?)

Nobody knows right now if Grooveshark will give out and sign away their seemingly sinking ship to the majors, or if they’ll keep fighting the good fight until the courts deliver a predictably narrow, safe harbor-eroding decision. Law was never good at keeping pace with technology.

Toward a Two-Way Music Industry

The majors would like to continue collecting 88% of the market share for recorded music (and then pay a fraction of it to musicians because they signed exploitative contracts at low points in their career). How does consolidating wealth in media gatekeepers accomplish the IFPI’s mission of achieving “A digital world that rewards artists and creators”?

Stayin’ Alive

This fits into the larger context of corporations and governments trying to kill Internet freedom. Ask yourself, “Why wasn’t radio two-way? Why couldn’t the listeners also be the broadcasters? What about television?” At a glance this seems to be a technology and cost issue, but it’s not that simple. There are powerful commercial forces that ensure these technologies are developed in a way that maximizes profit for corporations, creators and consumers be damned. That’s why we have a long history of gatekeepers in all creative industries, not just in music.

The Internet changed all that with one simple feature — the consumer is now also the broadcaster. Large corporations have spent the last 15 years trying to litigate and legislate their way back to one-way media. Discouragingly, they continue to make gains every day.

This is why I believe Grooveshark may be the more ethical approach on balance. Spotify may talk a good game on paying artists. They may be expanding the pie we take our little piece of. And we can’t rush to conclusions that just because a single stream payment looks small today doesn’t mean it will add up in the long haul. Ultimately, any discussion of musician’s revenue share is taking place within the context of what their revenue share will be after the technology company takes their 30%, and then the label takes its majority share. Spotify and the IFPI are really only innovators in repressive legal maneuvers and artist exploitation. They’re profiting from a 15-year-old idea Napster first realized.

How can I say Spotify and the IFPI are exploiting artists when they’re trying to collect more money for them? Because it perpetuates the old model of exploitation on new technology. It’s repeating the same cycle of co-option that happened with the phonograph, with radio, with cassettes and with CDs. It’s a smokescreen to prevent you from thinking like an entrepreneur, from adapting to free access to music, from finding new opportunities to profit without the gatekeepers and stealing their market share. They desperately want to continue the same systematic exploitation and price-fixing that the record industry has been guilty of for the last 100+ years.

Grooveshark is more ethical because it rejects this corruption. They aren’t saints. They’re certainly pariahs. They haven’t figured out how to improve upon tiny streaming music payments, but they’re trying so hard they’re sacrificing their personal lives, their livelihoods, their reputations and quite possibly their sanity.

The vast majority of musicians will see no significant increase in revenue until the major labels lose their market monopoly, and their revenue share drops considerably. In this sense, Grooveshark is using loopholes in the DMCA to kick the IFPI in the nuts — pretty much its only defense against the obscene legal might of the industry elite.

As a musician, do you really think the IFPI or Spotify (if they can stay in business) are going to solve your revenue problem? Of course not. They’re looking out for #1: the record industry elite.

The solution for musicians is to start looking out for #1 too. That means building a culture of entrepreneurship. That means direct patronage from fans via crowdfunding and tipping. That means cutting out the gatekeeper and giving fans exclusive access to products that are still scarce. Selling access to music is no longer viable, and only by corrupting copyright do corporations make it so. The ethical foundation of copyright is sound, but it has been corrupted.

The greatest lie told by the IFPI is not that their mission is driven by musicians (they have musicians in mind, maybe, but certainly not a priority). The greatest lie told is that they are somehow going to bring musicians back to a world where they were fairly paid for their labor, where they are free to express their personhood without exploitation, where society can access and share music freely, and where more music of higher quality and greater diversity is listened to with greater frequency.

That world never existed. But it can today, with free access to music as the great equalizer.

The only way to fairly solve the musician revenue problem is for musicians to reject the century-old system of exploitation and fight to keep the Internet free so we can build a new culture and economy of direct fan patronage and musician entrepreneurship.

Until that happens, I’ll be rocking out to Placido Domingo on Grooveshark and waiting for the next Napster.

Copyright Law Robs Us of Political and Social Power of Sampling

Sampling is a political and social act. Requiring permission and a license -- particularly without a fair mechanism to facilitate that -- is a form of oppression. (Photo by John R. Southern)
Sampling is a political and social act. Requiring permission and a license without a fair mechanism to facilitate that is a form of oppression. (Photo by John R. Southern)

It is difficult to name a court decision that has had a greater negative impact on recorded music than Bridgeport Music, Inc. v. Dimension Film. The de minimis doctrine, with respect to digital sampling of sound recordings, effectively disappeared after the court’s decision, summarized as: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” From the perspective of culture theory, the court could not have made a more erroneous statement.

At the time, there was abundant social and political energy associated with hip hop, a genre based on sampling. Hip hop was and still remains an important social and political institution. The appropriation of mainstream culture by the “underground” through digital sampling was a direct, progressive response to disempowerment among the hip hop community. Bridgeport crushed this culture overnight. Samples became the province of the minority of rights holders who owned songs of licensable value, and the minority of musicians and labels who could afford their licensing fees.

Arguments in support of Bridgeport primarily appeal to labor/desert and personhood theories of copyright. Mandating all samples be licensed decimated their widespread use and was a failure from the perspective of cultural theory. But under theories of fairness and personhood, it’s a small price to pay to ensure the original author is compensated, remaining in control of granting or denying permission to sample.

Samples chosen purely for their aesthetic quality are the easiest samples to recreate in a studio, at far less cost than licensing. This is often invoked to defend Bridgeport, but it misses a critical cultural point. Popular songs carry the greatest political and social meaning. Generally speaking, the more popular the song sampled, the larger the audience with whom the meaning will resonate.

In practice, many musicians have transferred their rights to a record label by the time they achieve popularity that warrants being sampled. Particularly with less established artists, a label will avoid the risk of investing in a sampling license when a musician’s sales potential is unproven. Most unsigned musicians can’t afford to license samples at all. This is a chilling of creativity for dubious rewards.

We are compensating yesterday’s musician by erecting a prohibitively expensive barrier of creative entry for today’s musicians. It seems rather contradictory to appeal to the labor/desert theory by raising the cost and bureaucracy of entering the market.

Hip hop adapted and continues to evolve as a central part of our musical culture, but its development as an art form was unquestionably arrested. The near-disappearance of unauthorized digital sampling between 2005 and 2010 has been interrupted by an explosion of creativity. In much the same way hip hop did 30 years ago, mashups and remixes rapidly emerged over the last few years, challenging the sound recording status quo and facing an arrested development of their own.

Today’s sampling musicians lack the history of commercial success hip hop enjoyed. In a way, they don’t know what they’re missing. They feel more entitled to appropriating sound recordings, and less entitled to compensation. They’re participating in what Lawrence Lessig calls a “read-write” culture, similar to the culture of amateur performance that existed prior to the invention of the phonograph and the industrial commodification of music. They’re involved not just in a semiotic democracy, but a new culture of creative consumption that’s productive, not passive. This has numerous implications, not the least of which is that less labor/desert incentives and personhood assurances are needed to stimulate creativity — it now happens as a corollary of consumption.

Nothing changed in the law to enable this trend, it’s simply another case of technology racing forward. Songs can now be produced from samples on a tablet in under an hour. Music tastes and popular songs change in weeks, not years. Culture moves at speeds that copyright law can’t keep up with anymore. This creates large financial challenges for “professional” musicians, who are rapidly being offset by an exponentially larger pool of amateur and “semi-pro” musicians.

We must also acknowledge that sound recordings are themselves a platform for music discovery. Sampling can be a way for fans to discover new artists. Having one’s sample appear in the remix of a famous mashup artist can generate huge exposure for an emerging artist. Licensing chills this kind of spontaneous creative reuse, and if one demanded compensation, one may not be sampled. Well-established musicians whose music has demonstrated value do not share the same view, but from a welfare and culture perspective, the greater good is best served by free appropriation.

This is a messy situation, and reform to copyright is needed. A compulsory license for the sampling of sound recordings seems an appropriate solution. The specific mechanisms by which such a license would function are surely more complicated and contentious than, for example, compulsory performance licenses. However, they would be based on well-established legal precedents.

The deadweight loss experienced by our culture when the cost of licensing samples skyrocketed from zero to thousands of dollars was staggering. Cultural theory guides us toward compulsory licensing as a way to foster a more diverse, democratic and equal creative landscape. It encourages us to make works more freely available for creative reuse so that the next generation of musicians can make the next generation of music, while sustaining their livelihoods long enough to pass on their musical traditions.

Creative Commons offers a fine stopgap solution, allowing artists to license music such that it can be freely shared and remixed, yet protected against unauthorized commercial use. As access to music becomes free or nearly free, musicians will need to rely on revenue streams and methods of discovery outside of traditional music retail settings. Today it is more important to live the creative life than achieve the American dream with all the labor/desert it entails. I think that represents the triumph of culture and cultural theory over the increasingly anachronistic theories of copyright which address pre-Digital Age creativity.

Musician as Entrepreneur, Band as Business – Take My Class!

Today I’m excited to announce the culmination of over two months of round-the-clock production work to answer the common musician question: “How do I make money from my music?

I proudly present Musician as Entrepreneur, Band as Business, an online course offered by Artists House Music on the Udemy eLearning platform. Watch the promo video below:

Earlier this year I teamed up with John Snyder of the awesome Artists House non-profit to plan a curriculum that would engage and educate a new generation of musicians. Artists House has a massive video library — John brought to the table hundreds of hours of video footage featuring interviews with the top names in the music business.

I edited that massive mountain of content into 5.5 carefully curated hours, and with John’s wisdom (and 85 pages of written advice) to guide the production, we emerged with a course like no other.

Please head over to Udemy to preview the course — we’ve made one section available for free so you can get a glimpse of the top-shelf, real-world education we are offering here. There are no boring lectures that drone on, just solid tips from folks who have already proved they know how to make money from music.
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Compositions with Samples: A Music Discovery Market in Arrested Development

Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA
Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA

When you can’t sample something, you can’t discover you like it, and you won’t buy it.

Like many suburban white kids, my first exposure to hip hop was when Run-D.M.C. teamed up with Aerosmith on “Walk This Way”.

That collaboration was not just how I discovered Run-D.M.C., it was how I discovered the whole genre of hip hop. 2 Live Crew, Beastie Boys, NWA, Public Enemy, DJ Jazzy Jeff & The Fresh Prince and LL Cool J would soon follow, along with lots of awful hip-hop/teen pop crossovers I needn’t mention. For someone straight outta the Catskills, my hip hop roots run deep.

Was Run-D.M.C. showcasing its sound through Aerosmith’s composition? Or was Aerosmith showcasing its sound through Run-D.M.C.’s composition?

The answer, of course, is both. In this case, it was as much musical chemistry as calculated salesmanship. Both bands were rocking each other’s compositions as a platform for greater exposure. Run-D.M.C. appealed to fans of hair rock, and Aerosmith suddenly seemed relevant again, saving their music career. The whole thing was a marketing plot orchestrated by bearded studio magician Rick Rubin, who carefully arranged the profitable pairing in advance.

As any hip hop fan knows, creative appropriation of sound recordings — samples — are a fundamental building block of the genre. “Walk This Way” was staged, but most samples at the time were taken without permission. Hip hop had not yet begun to emerge as the commercial powerhouse it would soon become. It wasn’t until Bridgeport Music, Inc. v. Dimension Films that copyright law was brought down like a hammer against unauthorized sampling, and the practice suddenly became very expensive if not impossible.

Hip hop pre-Bridgeport was a revelation because it was a genre of music based on exposing people to other artists and genres of music through the actual composition. It wasn’t a composition as we traditionally thought of — sheet music with lyrics. Instead of notes, there were bits of sound recordings, with compositions contained within. Songs were transformed through sampling into new compositions that showcased artists and genres in a new context.

Hip hop wasn’t just a music genre, it was a music discovery platform.

The mashups, remixes and EDM of today are taking the mantle of genre-as-music-discovery vacated by hip hop after Bridgeport. I would argue that these genres are the natural progression hip hop would have taken had the creative act known as “sampling” not been stagnated by an unjust court ruling.

Today, you can discover several artists or genres in a single mashup. Like an audio scavenger hunt, listeners follow snippets of sound to their source, finding new favorite tracks and entire styles of music they didn’t know existed.

All of this is happening under the commercial radar right now because creating songs with unauthorized samples is technically copyright infringement. Girl Talk is the poster child for trying to make a career out of claiming such use is fair, using hundreds of uncleared samples and making lots of people scratch their heads as to how he gets away with it. There was a whole SXSW panel on it:

No one can argue there is a growing cultural awareness of Girl Talk-esque sampling as transformative, fair use among listeners and musicians. This contrasts with another widely held belief that there is a limit to sampling another’s work without payment. As they say in the video, “Puffy’s got to pay” when it comes to using the heart and soul of a song as the heart and soul of your new composition. In other words, any rational musician or listener can see there is a spectrum between fair use and copyright infringement when it comes to sampling. Unfortunately the law is generally absolutist about these things, and Girl Talk only avoids prosecution through conspicuousness. The fact is, anyone who samples any copyrighted song without permission is breaking the law and risking a lawsuit, and because of that, the professional mash-up musician is not allowed to be born.

Where does that leave music discovery via other people’s compositions? Will mashups/EDM atrophy without commercial support? Probably not. That’s the beauty of the illegal art form — it remains relatively un-compromised by commercial interests, and sustains a creative if chaotic scene. The uglier side — at least from a purely aesthetic perspective — is that the genre remains clogged with amateurs with no clear path toward a professional music career.

Much of the progressive talk in the music world around this issue centers on the concept of introducing a compulsory sampling license. Some serious thought and legal expertise has gone into developing this path toward copyright reform. The intent is to balance the welfare of the greater good and culture at large against what many perceive as too much power given to the individual — in this case, the copyright owner of the sample in question.

In the same way I can cover a song without permission so long as I compensate the original composer via a compulsory license, I could theoretically do the same for the composers (and sound recording rights owners) of my samples.

In practice, this is tricky for a number of reasons. For example, how do we set a compulsory sample licensing fee? Most people seem to think it should be based on what percentage of your composition the original sample represents, or what percentage of the original composition/sound recording you took. But how does one possibly determine that? Length of the sample? Whether it’s used in the chorus or the verse? Amount of sample transformation? The variables are endless. Calculating them in any standard format is flatly impractical — any attempt to do so would be fraught with compromise.

Then comes the personhood concerns — the idea that a person might not want their composition to appear in a particular context. For example, when Kanye West paid handsomely to use an Otis Redding sample on Watch the Throne, Otis Redding’s estate vetted every word in the song to ensure it matched Redding’s legacy. A compulsory sample license would allow me to use the same sample in a new composition called “Otis Redding Sucks” as long as I paid the requisite fee.

For those unfamiliar with music copyright, a song basically has two rights attached to it: the actual sequence and structure of the notes and lyrics as well as the actual recording. It’s another reason why sampling is trickier than cover songs — with a cover, you’re making a new recording, so you don’t have to pay or get permission to use the old one. With a sample, you’re dealing with two different sets of rights, which technically means two different licenses. Compositions are administered by performing arts organizations (ASCAP, BMI, SEASAC) on behalf of publishers and artists, licensing them is a fairly standard process. But many musicians transfer their song’s second right — the sound recording right — to a record label in exchange for financing the recording and marketing of their album. Thus, negotiations for sample use are not always entirely up to the artist, but their label as well. So in many cases, the composer would be cool with using the sample, but the record label that owns the sound recording would say no or hold out for more money.

For these and other reasons, it’s not likely that genres based on unauthorized sampling will reach any sort of widespread commercial viability any time soon. And that’s a real bummer, because we’re denying a generation of listeners one of the most vibrant music discovery platforms yet invented by humans — the composition-within-composition. Not to mention all the dough being left on the table.

Thankfully — as I always say — music finds a way. Bridgeport didn’t stop unauthorized sampling any more than Napster stopped unauthorized file sharing. In both cases, music discovery was driven underground.

We will continue to see the growth and evolution of compositions that make unauthorized use of other people’s compositions and sound recordings. I would urge all musicians to fight the good fight and protect their compositions and sound recordings with a Creative Commons license instead of relying on traditional copyright. With Creative Commons, you can protect your song against unauthorized commercial use while giving a wide berth to allow transformative uses of your song like sampling and remixing.

Sample culture will continue to thrive beneath the surface of the mainstream, waiting for a law to pass and unleash its bottled-up commercial potential. Until then, it will only get cooler and more creative, and samples will only gain more political power.

The corporations that control 75% of the world’s music would be keen to pay attention and change their strategy. Picture this: Girl Talk takes the stage with Aerosmith and Run-D.M.C. at the 2014 Grammy Awards and they infringe 60 years of music in 5 minutes. Watch that mashup single become the new “Gangnam Style” overnight.

Why Our Band Uses Creative Commons Licenses (Video)

Copyright is good at protecting creative work… too good. Traditional copyright prevents people from sharing and remixing your work. But with a Creative Commons license, your fans are free to copy, share, distribute, remix or build upon your music or other creative work. It has safeguards built in to prevent others from failing to attribute you, or from commercially exploiting your work without your permission.

Copyright Reform Movement Grows Up: Khanna Takes the Lead

A scant two months in, 2013 has already been a sobering year for the copyright reform movement. The suicide of one of our leaders, Aaron Swartz, shocked and outraged us. It brought old icons back into the fray and incited a growing legal and political thrust to action that is playing out as we speak.

Derek Khanna.
Derek Khanna.

One of the key players is Derek Khanna, the tip of the spear in a new copyright reform advocacy group called Fix Copyright. Khanna is the GOP “rising star” who was fired for a controversial copyright memo that I wrote about back in November of last year.

For the crime of pointing out a new way forward through Republican opposition to the casual granting of market monopolies (makes a lot of ideological sense), Khanna was unceremoniously fired from his post at the Republican Study committee. We’re pretty sure he’s not sweating that situation anymore, seeing as he just authored a White House petition signed by 114,000 U.S. citizens — the first to qualify for the new rules of consideration (the threshold is 100,000 votes).

The proposition? Mobile phone users should be free to unlock their cell phones. Simple enough, right? But a recent decision by the Library of Congress — perhaps under lobbying pressure — made the practice essentially illegal.

Once the petition reached critical mass, the Obama administration agreed with Khanna and the 114,000+ citizens who cried out against the possibility they could go to jail for unlocking their cell phone.

The exciting thing is that this is just the beginning. Khanna has already pledged to take the fight further.

Khanna is a unique figure in the endeavor to transform intellectual property policy into a force for the greater good. His up-and-coming political stature is a rare commodity within the oft-geeky, insular culture of copyright reform. This is an exciting time for those optimistic for a rethinking of copyright that values cultural and social welfare concerns over a strictly labor- and personality-based view of intellectual property’s purpose.

Copyright Reform Necessary to Protect the Consumer-Creator

musiccreator

Free song sharing is this generation’s VCR.

Twenty years from now everyone in the music industry will look back at the plummeting price of access to recordings and shake our heads much the same way the movie industry looks back at its attempts to outlaw the VCR. How could anyone rationally think otherwise? And yet the entertainment industry has been chipping away at the legal underpinnings of fair use established by the US Supreme Court just under 30 years ago.

In Sony Corp. of America v. Universal City Studios, Inc. — otherwise known as the “Betamax case” — the Court narrowly ruled in favor of the greater good.

Justices Marshall, Powell, and Rehnquist joined Blackmun in dissenting, completely ignoring welfare-based theories of copyright. These justices were siding with the MPAA’s view that any leeway given to copyright infringement, even personal copying for private use, undermined the whole system of copyright.

It’s not that they were wrong in their assessment. VCRs did undermine copyright in the sense that fair use enabled people to make tens of millions of copies of copyrighted material. But nothing happens in a vacuum. Consumers were so busy “undermining” the copyright, they developed a voracious appetite for films and TV shows, and the movie and television industries positively exploded.

The same thing is happening in so-called music piracy, it’s just happening incredibly slowly because the music industry is still for the most part fighting free access to music.

Certainly, creators need to be compensated for their labor. Copyright exists to provide this incentive to work, ensuring creative works get made. It also exists to protect our personhood — our identity as defined by our creative expressions. Copyright should prevent our labor from being unjustly exploited, and our identity from being stolen.

For many, this is where copyright ends because they are only thinking about themselves (it’s something of an American pastime.) They ought to stop and think for a moment, because there are an estimated 315,613,999 other folks in this country alone who deserve consideration.

Copyright is not just about protecting your individual right (or, more commonly, a corporation’s right) to profit from or be fairly represented in the exploitation of their works. It’s about the greater good, a concept that trumps any individual concern. We tend to overvalue our own creative endeavors because the labor and personhood considerations of creativity distort our perception. Our value is high because we worked hard and infused our work with something of personal essence.

But while the price of creative work may be set by individual, society at large will ultimately judge its value. This is why record labels have to fix prices — to override the more reasonable value judgement of consumers by exploiting their control over music access. In a truly free market, the value of music remains high and climbs even higher while the value of access to music approaches utility levels (think Spotify) if not zero. The music industry is fighting the devaluing of access to music rather than the music itself. On the contrary, there is now more music being produced per year than ever before — more bad music to be sure, but much more good as well.

Copyright is supposed to ensure the needs of the greater good are met by stimulating individuals to contribute to that greater good. We recognize that having a market in which one’s creative works have value is a strong driver of individual contributions. But we must also recognize the purpose of copyright is to “promote the Progress” of the public and culture as a whole. In the case of labor and personhood, copyright is the art of balancing the individual need for monopoly protection with the public need to access creative works.

We need to stop looking at this like one creator is producing work for 315,613,999 consumers. It’s the 21st century. One creator is producing work for 315,613,999 other creators.

This culture in which everyone participates as both consumer and creator was still a ways off back in 1984 when the Betamax case was decided. Interestingly, dissenting Justice Blackmun unwittingly predicted a future in which the line between creator and consumer would not be so clear:

“Fair use may be found when a work is used ‘for purposes such as criticism, comment, news reporting, teaching… scholarship, or research.’ …other examples may be found in the case law. Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author’s work…”

In particular, this quote reminds me of the concept of “semiotic democracy“, a phrase first coined by John Fiske in 1987. In studying television culture, Fiske observed that “rather than being passive couch potatoes that absorbed information in an unmediated way, viewers actually gave their own meanings to the shows they watched that often differed substantially from the meaning intended by the show’s producer.”

This concept finds its legal context in addressing the growing creative, participatory role in culture that consumers are beginning to enjoy. In other words, we must start treating every consumer as a potential creator. This is not to say we need to mandate everyone make a cultural contribution, but only that we need to respect use and sharing of creative works as a potentially creative act, and one that cannot be reduced to mere product consumption because that was the intent of the producer.

Again, the market assigns value and meaning to creative works independent of intent. Increasingly, a big part of that value is in source material or inspiration for a new creative act.

Most of us in the 80s (those of us who were around, anyway) didn’t use our VCR creatively. I knew I was the exception when I sat in front of the TV recording little snippets of commercials and shows until I had an avant-garde remix of bizarrely juxtaposed images. Without YouTube, I had no distribution network (and few friends at the time) and did this purely for personal enjoyment.

I might not have seemed so out of place in today’s culture. Some of the most popular videos on YouTube are remixes of existing clips (much more entertaining than my VCR art). Dubstep and mashups have turned unlicensed sampling into the music of a generation. Even consumption is collaborative, with fans forming their opinions collectively through social networks. Welcome to the world of the consumer-creator.

It’s really not such a long way from creating our own meanings for TV shows in our heads to producing an expression of those unique meanings. We’ve been doing the former since the days of the VCR and earlier, but only recently have the means for creativity grown ubiquitous.

What does a world in which everyone’s a creator mean for copyright? It should mean reform.

We can’t do away with financial incentives to stimulate creative labor, but we have to reassess if a virtually perpetual market monopoly is bringing a chainsaw to a knife fight. There is much about current copyright term length and a narrowing definition of fair use that works against a culture of creativity. We need to allow consumer-creators to freely remix our individual works into new works if culture is to progress. (Creative Commons leads the charge in this arena, and you can find dozens of books promoting the idea of making fair use fairer.)

We should continue to protect the author’s personhood and the “essence” they contribute to their works. But we’re overdue to reconsider the roles of attribution and identity in a culture that is transcending our psychological hang-ups around copying as the core of creativity. (Marcus Boon’s In Praise of Copying is a great start.)

Finally, and most importantly, we need to push back against laws that clearly favor neither the individual nor the greater good. Lobbying and litigation have become the tools used by entertainment industry elite to stifle this new culture of the consumer-creator. Often passed of as acts to protect creativity, the industry is really only interested in driving consumption. Corporations like to keep creativity at an easily co-opted and exploited level.

If we can keep the corporations in check, one day, passive consumption will be taboo and participatory creation status quo. It’s what’s already going on in our heads. To keep culture locked up just so large corporations can profit (be they record labels or tech companies) is the opposite of copyright’s charter to promote progress. As the creator-to-consumer ratio changes, so too must the law.