Tuesday, August 04, 2009

RIAA breaks guitars, and music in general

So the court came down hard on Tenenbaum. Fuck. I was hoping the trial would last at least a week.

There are so many things to say about this. There's the idea that the punishment is excessive (Steve Lawson was one of the first to point out that $22K per MP3 is a complete joke). There's the idea that the record industry continues to fight against inevitable change, instead of working hard and in good faith to develop a viable business model that takes into account new technology, the livelihood of musicians, and the needs of audiences. And there's the idea that none of this will do what the RIAA appears to believe it will do -- specifically, intimidate other music fans into giving up "filesharing" altogether.

That last bit is key. Let me say it again, in a slightly different way: this case is not going to have much (or any) effect on the day-to-day lives of music fans -- except perhaps to galvanize them against the industry a bit more. So it's basically a very damaging exercise in futility, a lashing-out, a naked and spiteful display of power by an already-doomed giant. If this is a "war," as Debbie Rosenbaum says, it looks to me like Vietnam. "Filesharers" (i.e., most of us) are the Viet Cong, and the record industry is the US military-industrial-congressional complex, throwing massive amounts of firepower at the enemy, and finding itself flummoxed when a whack-a-mole dynamic ensues.

The fate of the twentieth century version of the music industry, as represented by the RIAA, is sealed. No matter how anti-social human beings may get, you cannot prevent them from sharing stuff they like, especially when the technologies to facilitate sharing are so ubiquitous. And so this trial was an expression of a strategy that has already failed. Mr. Tenenbaum, unfortunately for him, is collateral damage.

* * * * *

Incidentally, I find myself wondering why no musicians were singled out by the RIAA Dragnet. Surely musicians steal music too? Don't we? (Yes, I'm talking to you, fellow jazzers. Don't tell me no one has ever burned you a copy of a CD.) What would a musician have done in the face of one of those pompous subpoenas? How would a musician have "fought back"?

Well, I can't speak for anyone else, but I think I know how I would have approached things. (Not that the trial would have had a different outcome.)

Mostly, I would have wanted to look the court in the eye, at some particularly dramatic moment, and ask: "Do you really love music?" Assuming the answer was "yes," I'd go on: "Do you want more of it in the world? Would more good music, on balance, be a good thing for the planet?" Assuming the answer was again "yes," I'd go on some more: "Where do you think good music comes from? A vacuum?"

And if the answer to that was also "yes," I'd know I was dealing with the assumption that musical brilliance springs full-blown from the mind of genius composers who lock themselves in musty attics for years on end, and whose output does not depend upon interaction with a vibrant, accessible musical culture. I'd have to go into a long rant about an opposing (and, in my opinion, more accurate) theory: that in order to make good new music, musicians have to be knowledgeable about already existing music, and being knowledgeable about already existing music (especially on a typical musician's income) sometimes means that it has to be passed around for free.

I'd point out that biographical data usually suggests that, at some point, developing musicians have access to a public and / or private social context in which they can hear a good deal of high-quality music. Everyone knows, for instance, about Louis Armstrong, and the public music making that occurred in the New Orleans of his youth (parades, funerals and other social events). I'd talk about Bach and Zappa, and any number of my other heroes and heroines, and how they depended upon the existence of a public sphere for music, and to the extent that they couldn't get music that way, and to the extent that they couldn't purchase it, they too had to "steal" it. Sheee-yit, there was filesharing way before Kazaa.

Oh, I'd school those highly-paid, tone-deaf lawyers. I'd argue that, yes, musicians need to be remunerated for their work (not that you were ever very good at making that happen, dear RIAA!), but if you try to make sharing impossible (and that's what's at the bottom of the industry's slippery slope, isn't it?) you're going to end up with a musical culture that is a whole lot less interesting and creative.

I'd talk about how it's not about not paying for music if you can (something no true fan would ever even consider), it's about not automatically being denied music just because you can't. It's about ensuring the existence of a "musical commons" (part of the "intangible commons of the mind"), which doesn't have to include all music, but which has to exist, and which, as a commons, should be accessible regardless of one’s economic resources.

(To clarify that "slippery slope" crack, I'd argue that the RIAA, with its infernal DMCAs, and its confounded Sonny Bono Copyright Acts, its craptacular DRM technologies, and so on, has, since this nonsense started 10 years ago, been pushing toward a totally proprietary listening environment -- the complete and precise opposite of a musical commons.)

What else? I'd talk about the generally lame state of music education in the US, and how that further depletes the musical commons.

And then, for good measure, I'd point out that the framers of the Constitution thought copyright should be used to attract people to a life in the arts and sciences by providing a material incentive -- which is different than saying that copyright should reward the hoarding of intellectual property as if it was a scarce good. Copyright was designed to promote creativity, not to divide musical culture up into little fiefdoms.

And finally, as they carried me out of the courtroom, kicking and screaming (I presume), I'd leave them with this bombastic recap: if you think music can optimally continue in an environment in which the act of sharing is technically, officially, and legally verboten, you're kidding yourselves!

[Photo credit: mercredis]


Jason Parker said...


Marcus said...

Well said sir. Copyright law needs to be revisited now, but as my ASCAP daily emails keep reminding me, it's not happening anytime soon. Of course financial damage to me as a result of filesharing is about as likely as a shark attack, and can only have positive results. The financial model we are heading toward doesn't need the RIAA anyway. Let's hope they hurry up and get their demise over with. Nice post.

mrG said...

the fatal flaw in your wonderful rebuttal is unfortunately right at the start, at the part where you assume this is about the music. It isn't. Never was, never will be. It is about property. The first ever Copyright case was a rare psalm book lent to a monk who copied it, thus, argued the plaintif, diminishing the value of the rare book and thus, argued the plaintif, he sought 'damages' to cover that loss in personal property value.

The Lord was awarded damages, the Monk had to pay and that was the birth of Copyright. The slippery slope continued to this very day.

Filetrading, we have seen demonstrated over and over, actually increases the property value for back-catalog and indie "properties" and is at worst neutral for the rest, so there goes any hope you may have had about appealing to logic. As musicians we also already know that this is only very rarely about money in the musicians pockets, because we all know the second we have a 'hit' someone in a slick suit will step up and offer us a dazzling amount for the rights to it and thereafter it is their property to peddle. cf "Louie Louie" for just one famous example.

It used to bug me in Star Trek how even the Klingons had culture, but the Earth People did not. If they had any, it was ancient, old music, old books, old paintings. The freakin' ANDROID had culture, but even the psychologist was completely devoid of even a sense of fashion. I always wondered why that was so, but as I grew older I realized why: we had sold out our culture in the 20th Century so there was no culture for them to have.

Today we do have some culture, but precious little. The old-time folks, be that Charlie Parkers or Hobart Smiths, they hide behind old old melodies from a day before the RIAA, back when you either didn't 'know' better, or just didn't care. Then there's the techno kids who have a thriving culture of sharing beats and samples and sequences ...

that latter groups is especially interesting to me, although I confess I don't much like the music itself, nonetheless they have a culture that revolves around two key features: they have regular events that consume as much music as they can produce, and they have a culture of open sharing that enables them to fill the need for that music. The old-time people do this too, but the techno kids have a new form, a reinvented form

and a form fundamentally based on the Creative Commons and Free Culture. And it's punk. It is so punk the other musicians laugh at it and derride it between complaints about their own plummeting market share. But dig: it's working.

CreativeCommons and Free Culture are two reactions to over-control by lawyers that grew out of the software industry -- in software we have the unique problem of having particular 'solutions' having patent numbers that then require micro-royalties -- imagine if certain modulation sequences or harmonic resolutions or chord substitutions were to be patented by the wealthy artists. You couldn't move. That's the world we found ourselves in circa 1980, and thus was born first the GNU Public License and later the more generic all-creative-works CreativeCommons.org -- I emplore you all to check it out, read it over, meditate on it, and please see that the only way we are going to defeat the RIAA is by rendering them obsolete.

Sorry for the long post. Thank you for your time. Long may you run.

Anonymous said...

That does it. I'm going to round up my cds and donate them to the public library. Or will the RIAA sue these institutions, as well? Shame on the blue-hairs and minimalists for "stealing" music that's publicly accessible!! With my cds gone, I'll finally be able to reclaim the space underneath my bed for dust bunnies and the wayward sock.

What makes me laugh is that I actually have platinum- and gold-tinged framed records from the RIAA from my time spent with a certain band. I wasn't even on that album, but I assume that the expense of ordering and shipping these to me was a burden of the band and not the RIAA. Soon-to-be relics of the past, perhaps?


Editilla said...

I'm wit'you all the way but...
Zappa was a real hard ass regarding copyrights.
And for that matter so was Bach.
You never just "steal" someone else's music period.
I don't care who you are, copyright matters --or you are just another nigger playing in the side room for the mister man.
Personally I don't have any sympathy with Jazz Stylists who take a song or piece of some one else's and "make it their own" by jazzing it up. Screw that elevator music. Write your own Pop tune and then Jazz That Up.

But as I said, I am with you on the RIAA.

mrG said...

heh ... ok, how's this: "This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do." (Woody Guthrie)

And just for argument sake, last time you were at a campfire, how many Woody Guthrie songs did everyone know, as opposed to say, the number of Zappa or Bach pieces played ;)

But nonetheless, what is at issue here is not where Zappa had his whole opus up his legal briefs, but whether this should be the only way, because it currently is the defacto default, and most musicians, most writers, most painters and playwrites, most are just so damn happy to have been asked to sign papers, they don't bother to take a very close look at what it is they are signing, or, as with Louie Louie they just didn't care because $500 was all they needed. At that moment. Considering all other offers. If you catch my drift.

CC puts the decision in the artst's hands, to give away or to anally retain as much or as little as they personally see morally and ethically bound to do. If you are writing the film music for the next Harry Potter flick, you'll want everything you can get; if you are writing incidental music for a one-shot performance, hey, who cares, be my guest you're welcome to pillage it, and all the shades of gray in between. What Woody is telling us is that we have to know when to be satisfied that we got what we wanted.

Besides, Bach had a patron and didn't have to pay his copiest printers (they were his children).

Stanley Jason Zappa said...

Good times!

Is it wrong to ask how many of the world's problems (well, our problems while in the world) are directly related to private property?

Also: If 'we' could create a music-reality of our own, from scratch, would it involve RIAA, BMI, ASCAP, intellectual property lawyers, booking agents, publicists, contracts, courts, lawsuits, punishment, fines and all the rest of the non-musical apparati that have such sway in the arts?

What if all those things--the lawyers, the 'organizations', the publicists, the punishment, the rules and gate keepers (those who make money off of the musicians labor without actually making any music of their own)--disappeared...would music stop?

Would music thrive?

Not to be "all dark" or anything (heaven forbid!) but I'm waiting for the first person to be imprisoned (or beheaded) for "stealing" music--if only to see the continued widespread continued allegiance to said apparatus by consumers and producers alike.

When that day comes, will "music" have reached a new place of importance, or (as Mr.G suggests) will "private property" have yet another notch in its belt?

Great post!

danny said...

As the RIAA has now publicly stated they will not be paying the artists from the fine, I'm waiting for the artists on the lists of Tenenbaum-shared MP3s to sue the RIAA for part of the income - if I were on that list I'd be checking every possible attack vector

mrG said...

oh now that is smooth. but it proves my point, that it's never been about the music or the artists; here in Canada is it now up to the ARTISTS to track their own airplay and then petition SOCAN for their share. Those artists with the technical proficiency can submit their works to a Nielsons ratings bot that monitors mainstream radio for 'audio fingerprints', but it's still up to the artist to track the Nielsons BDS report and then nag the org for proper payment. American artists can use this service too, but here in Canada this is the ONLY way you'll know your airplay.

is that list of artists publically online anywhere?

Steve Ames said...

My sense, as a musician and producer is that music is an art form that only truly exists in the moment. A recording somehow isn't music. Don't know where I'm going with this, but it's why I play music, and didn't like recording much. It only really exists when I'm playing it. Paintings are different. The RIAA sucks, and I think the idea of a studio only band or musician doesn't really make sense either.

mrG said...

I'm with Steve and I can prove it: take the very best sound system you can muster and play it in a public place and no one, absolutely no one (except 'audiophiles') will care, but you put one good musician in that same situation, even if hidden from view, and you get instant attention.

I'm not even so sure I like PA systems for the same reason, but that's just my extreme POV. Pertinent to THIS discussion, I think it behooves us as musicians to remind folk how canned music is to music as canned peaches are to peaches, and they should re-gain the ears to hear that, and thus demand live music. Conversely, I think we musicians need to lighten up and provide that living music in more venues than just pubs and festival stages where a dollar-sign is attached. Anywhere where music is needed, one of us needs to buckle down and make sure it happens. The survival of our culture depends on it.

Paintings is an interesting point: I found proof of that some years ago after visiting the National Art Gallery in Ottawa with some traditionalists, and I had teased them the whole time about Barnett Newman's "Voice of Fire" -- they insisted it was bunk, and I would invent all sorts of pseudo-intellectual reasons why it wasn't just to get their goat. I even bought the postcard, just to rub it in.

But ... when I got home (alcohol was a factor) I looked at my postcards and it hit me: every other postcard is an image of a canvas EXCEPT the Voice of Fire! That one and only that one was rendered as a man standing next to that infamous stripe. See http://en.wikipedia.org/wiki/Voice_of_Fire and you'll see what I mean: an image of the canvas is useless, completely useless, but ... to stand next to this massive thing ... it defines a place, a unique and irreproducable place on the planet. "meet me at the voice of fire" means only one location, and THAT is what the gallery had purchased.

As musicians we need to remember that Mintons was Monk, it was a place, it was the place and it was made special by the presence of the living Monk. Place the best Japanese Import LP in a glass case, it just ain't the same. The place is where the living music happened.

Andrew Durkin said...

Thanks, everybody, for your comments! I would have chimed in sooner, but for tour planning...

Anyway, as I said over in Facebook-land, I'm a big fan of Creative Commons. I have been for a long time. (You may have noticed that I've started regularly supplementing my posts with images drawn from the CC section of Flickr.)

I'm not sure I agree that this incident is not about music, though. I'll grant you that the RIAA's motivations / POV have nothing to do with music, per se. But this pointless struggle has had a real-world impact on musicians and fans, needlessly slowing down the shift to a new copyright economy, turning some people off to music altogether, and influencing some artists to think in counterproductive ways about their own creativity. So maybe it's not about music in its substance, but it certainly is about music in its effects.

For instance: I think it's worth wondering aloud about the ways in which artists' internalization of the "old copyright" worldview can be antithetical to the creative process itself. Maybe this gets at SJZ's point a little: the only time in my life I have ever had writer's block was when I flirted with an overprotective attitude toward my own work. Somehow that defensive stance fed the notion that good ideas were hard to come by, and thus had to be guarded like little hothouse flowers. When I finally and sensibly relinquished that stance, suddenly the good ideas were everywhere.

I like the idea of living in a world where good ideas are everywhere, and so that was part of what was driving my RIAA critique.

As for the live / recorded debate: I realize that's probably a subject best reserved for another post, but briefly, my own take is this: I love recorded music. I'm no audiophile, but I do perk up if I hear something I like on a sound system in a public place. All music is filtered somehow, whether that's through a Bose speaker or through the feathered hat of the lady sitting in front of you: sound is, as Zappa said, just wiggling air molecules. So I don't get the desire to privilege one over the other. I do realize that "the moment" is a good argument for live music (and I love live music too), but what is often overlooked about recordings is that they can change, because we as listeners change. Isn't that being in the moment too?

mrG said...

if music was simply wiggly air, then sound systems would work. What you and I hear, as musicians, is different than what the average person hears because you and I colour what we hear with prior experience. In other words, we imagine most of what we hear on records because we know what it really sounds like. Thus I can listen to old cylinder and victrola recordings and get really excited about the composition and musicianship, whereas everyone I have ever lived near (save a few, musicians all of them) will say "Turn Off That Noise!"

If it is all just filtered sound, everyone should be used to it, like how they all see circles where the eyes nearly always see ellipses, it needn't be a learned thing. Everyone has heard sound filtered through doors, through hats, through distorter muffs of all sorts, yet you play a soundsystem in a subway, you get sneers, you play a guitar, you get smiles. You play a brassband record out your shop window, you get nada, but the Hypnotic Brass plays a street corner and people (who cannot see them) swerve from blocks away to investigate the marvelous 'sound'.

I have my theory, and I have a mounting stack of solid cognitive science to support it (maybe short-range cognitive quantum field effects?) but that lunacy is for another post or a few beers in a pub somewhere.

What I really wanted to comment on is what you said about conditioning, on how the current very ultra-modern new unprecidented view that 'music' is a precious hot-house flower (love that metaphor) has seeped into and stifled the psyche. That is so true, and so sad.

70,000+ years of happy and productive community song trading wiped from the western consciousness in a mere 40 years of commoditization. Yeah, Bach sold his stuff, but he was free to borrow ideas from anywhere; Handel, Mozart, Beethoven, Hayden up to Coltrane, Gil Evans and Cecil Taylor, they all used to work together and share ideas, for the betterment of a better music.

Then, says Bill Dixon (in the wonderful film "Imagine the Sound") it all stopped. Circa 1968, it shut up tight and died. It all became about the money, the ownership, the patents and the property.

Someone out of the Beat era, I think it was their historian/photographer (forget his name, famous for early Dylan shoots iirc) said the main difference between the Beats and the Hippies was how the Beats only cared about the quality of the work, willing to sacrifice everything else, whereas the Hippies only cared about the money.

Andrew Durkin said...

Sound systems do work! I'll tell you why when I revisit this topic in a new blog post. Soon...

mrG said...

which reminds me: why are we not required to pay royalties to Shure, Marshall and Gibson? Clearly we leverage their brand names to give our own some cred the same way we take an interesting standard and make it our own sound, and you can't tell me that Jerome Kern spent more sweat and toil on All The Things You Are than who-ever Anonymous would brilliantly constructed the SM-58, so surely when we share our mics, THAT composer deserves a share too, no?

I'll look forward to the soundsystem post -- I hope it explains why they keep getting LOUDER (and more expensive) yet get no closer to the crowd-control capabilities claimed by Pythagoras. And then there's the whole wave-phase power equation that works for sympathetically sync'd horns standing proximate in space, but gets forgotten in the electron pipes. But I'm always open to new data :)

John Badger said...

Another great post.