Luxagraf

In the last article, I made the case that as fans of certain musicians we owe it to them to purchase their records rather than download them. And I made it more rationally than the RIAA will ever do because I am not a raving lunatic. At least most of the time I’m not. There have been a couple incidents with brown liquor and fire, but that was some time ago. The point being that, while I still believe that one ought to support your favorite musicians, I realize the ubiquity of P2P network file sharing. I was reading up around the web recently and happened to check in on the ever informative blog of Samuel Wan, which pointed me to a series of articles by Clay Shirky. There were actually two that are relevant to this article and very good reading if you have the time. The first one I will talk about is entitled “The Music Business and The Big Flip”. The other, and much older, article entitled “Content Shifts to the Edges, Redux” is partly related, but mostly interesting for what it predicts and what has actually come to be.

But first I wanted to respond publicly to the two people who emailed me to say that regardless of the logic one wants to use (and it was not my logic they were arguing against), downloading music illegally is the same as stealing a cd out of a record store. In fact, it is not. And this is not just a hairsplitting point, rather it gets to the very heart of my contentions. The fundamental distinction is that CDs are physical things, and stealing them is like stealing any other tangible object—illegal. Copyright, on the other hand, is an abstract right granted by the government. “As Supreme Court Justice Harry Blackmun wrote (somewhat obliquely) in 1985,

[copyright infringement] does not easily equate with theft, conversion, or fraud…The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use.”

(I’m not sure exactly where I’m quoting from, but I believe it was CNET). Now, with the typical vagueness of a Supreme Court rulings, what the court has said is that infringing on copyright is NOT the same as stealing.

In theft there is the loss of both potential revenue and an object. While copyright infringement may be a source of revenue loss, the owner of the copyright has not been deprived of the copyright. And as the good justice points out the potential violator has not “deprived [the copyright] owner of it’s use.” What then is the use of copyright? Is the use of copyright simply to ensure that someone pays some hard earned clams for a physical object? Is copyright a means of collecting revenue?

Actually, no. Copyright exists to protect its owner against the idea being stolen or passed off as someone else’s work. The fact that it’s been twisted into an issue of revenue loss, is sad, but to be expected in society as monetarily obsessed as ours. Violation of copyright, at least the violation that inspired the concept of copyright, is when I download a song, and then start selling or giving it away under my own name, claiming to have created it myself. Copyright’s original intention was to encourage to free and open sharing of information by providing a guarantee of authorship and rights to intellectual property so that property could then be given to the world at large without fear of someone else stealing your ideas and passing them off as your own. Naturally in the capitalist and post-capitalist worlds we’ve seen since the granting of copyrights, most challenges testing copyright have come up in situations where someone find a way to profit from another’s ideas.

Does downloading a song off a network server violate copyright? Well, in my mind, that’s probably still open for debate and no doubt will be landing in the Supreme Court some day soon. What is so irritating is the RIAA’s insistence on trying to convince America that musicians have the right, the god given right to sell their music for whatever the hell the want to. They have no such right. They have the right to deal with fluctuations in markets in any way they see fit, which in this case is to behave like cornered wild animals. And I really doubt that anyone in America seriously thinks that the Artists themselves are the ones losing money. Let’s face it, Seagrams didn’t buy up all those massive and very expensive record labels to see the profits plunge and consumers abandon cds in droves. No, Seagrams wants a return on their investment and it they have to sue 80 years old and newborns to get it they will.

The Collapse of Scarcity

But what Seagrams and the RIAA are slow to pick up on, is that the economic model they believe to be their right, defendable in the courts behind a shield of copyright laws, is dead and withering.

Let’s talk economics. The value of cds rests in the artificial notion that cds are scarce. In other words, cds are only available in cd stores and the like. The music industry is under the mistaken belief that cds are still the primary means of consuming music and that they will remain that way as soon as we put a stop to this pesky file sharing thing. But as users know, cds are no longer the primary means of consuming music and thus their scarcity will no longer be able to drive the economic model.As Baudrillard points out in Simulacra and Simulation the vast majority of what surrounds us are simulacra —copies without originals. For instance, the computer I am writing on is not an original, but a copy of an original where the original does not in fact exist. While it may be argued that somewhere in the halls of Cupertino there is a prototype version, which represents an original, it’s not an original. It’s a prototype. It was itself a copy of yet an earlier prototype. BaudrillardZs use of simulacra is somewhat more involved, complex and more sophisticated, but for my purposes you can see what a simulacrum represents—the value of an object lies in its being a copy, not an original. No one wants that prototype laptop; they want the functioning copy. Nowadays no one needs the prototype cd, what they need is the functioning mp3 copy. In model the prototype cd is worthless and in our own it will soon be as well. (For the time being lets ignore the finer points such as sonic quality.)

About two years ago there was an article in the NY Times by Kevin Kelly that made some predictions about the future of the music industry. Now the industry itself has simply refused to deal with the collapse of their economic model so none of Mr. Kelly’s predictions have come to pass, but his ideas remain good ones and bear repeating (I would link to the article but I believe it costs money if you want to dig that far back into the NYT archives). Kelly’s article contains the following extremely insightful example: “The moment something becomes free and ubiquitous, its position in the economic equation is suddenly inverted. When nighttime electrical lighting was new, it was the poor who burned common candles. When electricity became easily accessible and practically free, candles at dinner became a sign of luxury.” Does this mean that eventually owning cds will be a sign of luxury? Possibly, but the important point is that value has been inverted. The value of a song used to be determined by the demand that existed for it, which is why the flavor of the week is $17.99 and old Menudo cds can be had for $.99 (we will ignore the price-fixing arrangement between the record industry and chain stores and assume that these prices are market driven). The inversion of this can be seen on P2P networks where the easiest thing to get for free is the flavor of the week. The more people listening to it, the more computer hosts with the song stashed on their hard drive. What is difficult to find (and therefore potentially valuable is the obscure live version or the alternate mix or the out of print or the… What I want more than the new Radiohead cd is the three cd collection of 1920’s Appalachian porch music that my friend Keith collected from Napster way back in the day. A collection that was very likely culled from hundreds of bargain bin cds purchased by hundreds of people who made hundreds of copies and put them on one central server. In this example who wins and who loses? The artists are very likely dead. The record companies have abandoned the titles because there is supposedly no demand for them… who wins? The consumer wins. We, or at least my friend Keith and I, have access to music that previously was too scattered to access. But the economic model of the record industry has no room for the consumer. What is successful for the recording industry is not what the consumer enjoys, but what he/she can be convinced to buy.

Okay I know your objection, how can we be convinced to buy what we can easily get for free? Well the iTunes music store is a good example. 10 million or so songs sold at $.99 each in about six months. Apple has a long history of starting trends in this industry so it’ll be interesting to see where their model ends up. I have another one, influenced partly by Clay Shirky’s article: Niches and communities.

Mr. Shirky envisions a restructuing of the A&R process to include user input via websites that he sees function much like SlashDot or other review-based systems. As he points out, not only does this create a context for filtering new music, it builds a community. While he considers it relatively different than the current approach, a cynic could argue that in essence he’s suggesting that the tradition focus group be made a public forum. I think his idea is an excellent start and it would be an interesting experiment (one I would be interested in getting involved with. if anyone else is interested email me). However, I think he stops short of truly restructuring the industry as a whole. If the scarcity of cds is upended by the avalanche of mp3s, then the retail model must also be restructured. What the iTunes music store does is simply move the current retail system online. A good start, but let’s think further. If you are a band recording music digitally on hard drives, what is a record label going to do for you? Take your product and make it scarce. If you’re in it to make money that might sound like a good thing, but consider that you aren’t the only band the label is working with. Maybe you get promoted maybe you don’t. But either way the label is going to want that money back that they used to make your product scarce. Why not sign with a distribution company like the iTunes Music Store (currently not an option of the iTunes Music Store) and then hire a promotions company for the press kit end of the business. That is essentially all the record company is doing for the band right now. Traditionally bands haven’t had to deal with the business end of their field at all. They simply sign on the dotted line and the rest happens without their involvement. The music business may be one of the only businesses where truly clueless people can make a lot of money. As I see it that model is no longer the most lucrative possibility. If there were internet distribution centers like the iTunes Music Store and creative promotions companies the label would be less necessary. Think about it—some of the most successful independent bands already do this, Fugazi and Ani Difranco come to mind, even U2 owns the majority of Island Records, they didn’t start out that way, but they realized the best way to gain control of their own affairs was to buy the large company that handled them. In the case of Fugazi and Ani Difranco they got where they are by working outside the industry without a digital distribution system like the one we’re discussing here.

Will some of the showbiz aspects of music be lost in this model? Yes. And that’s where Shirky’s article gets interesting. He believes that musicians will no longer get fame and fortune as a matter of course with success, but will be forced to choose between them.

to be continued again…