The RIAA – They Can’t Be Serious


Noticed that the top e-mailed story from the entire Washington Post site the other today was regular radio columnist Marc Fisher’s latest Report from the RIAA front, containing this loaded handgun of a paragraph:

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.

Huh? Ripping your CD (or vinyl, for that matter) into your PC is a crime? No wonder the music-blogosphere is burning up, and Jerry Del Colliano is hyperventilating. They can’t be serious! After all, the in the “Betamax case” (brought in 1976, ultimately settled in 1984) the Supreme Court famously said that home taping for “personal use” was OK — and thus the VCR and TiVo industry was born.

Ironically, in its initial response to the lawsuit, Sony in fact argued that the precedent of home-taping had been introduced by the cassette recorder, which was of course used for recording AUDIO only. So now the RIAA is seriously going to clamp down on the 21st-century version of this practice?

No, I don’t think they’re serious about it all. I think the clues to what’s really going on here lie in this analysis of the Betamax case by the Frontier Foundation:

It’s thanks to the Betamax ruling that the makers of VCRs and every other technology capable of infringing and non-infringing uses (e.g., personal computers, CD burners, the TiVo DVR, Apple’s iPod, and Web browsers) can continue to sell their wares without fear of lawsuits from copyright owners.

The whole article is pretty good — it really does suggest that RIAA sees another opening here to lay claim to more legal territory, and try to chip away a little more at the accursed Betamax ruling. It’s not you at home they’re after — it’s winning the hearts and minds of the Court. Doubt that anything so politically charged will happen in 2008, however…..

ASCAP & BMI – Mining the WV Mountains for Royalties


So there I was minding my own business in an afternoon session of the Create WV conference, listening attentively at a panel called “Creating Places to Hang Out.” The premise is simple enough: How to create so-called “third places:”

“The places we spend our time away from work and home are important, especially to creative, New Economy workers. Whether it is for food, entertainment, or just a pleasant place to hang out, people are attracted to public and semi-public spaces to be around others, share ideas and dream up new opportunities.”

The panel boasted the proprietors of some of the very coolest places in WV, including the Cathedral Cafe in Fayetteville, WV (by the New River Gorge), the near-legendary folk/acoustic venue (and RoeDeo-RoadTested) Purple Fiddle in Thomas, WV, and the much-buzzed-about Cafe Cimino in Sutton, WV, population 993.

The discussion naturally turned to questions about what makes a “Third Place” cool and attractive, and what visitors/tourists/customers are looking for. Places that are dog-friendly. Places with books. Coffee available all the time. Comfortable places, nooks, and crannies. Oh, and people are looking for more live music.

And that’s when the entire conversation took a sudden left turn.

The answer from the panel: Chances are that you’re going to be hearing LESS music – both live and pre-recorded, rather than more.

Tim Urbanic of the Cafe Cimino then proceeded to tell a harrowing tale of harrassment from ASCAP and BMI….demanding copyright payments (both for piped-in music from radio stations as well as cover bands playing Eagles tunes) running into several thousands of dollars. Threatening lawsuits. And getting 10 calls in a row from BMI on a Friday night, the caller trying to overhear the live music being performed in the background to determine if it’s a song in copyright.

Astonishing. Unbelievable. And the facts – and tactics – confirmed by all of the other live music providers in the room.

So maybe all of the other doomsayers are right. If the PROs are trying to dig copyright coin out of the hardscrabble West Virginia soil, they must either be really desperate, or have built a scarily efficient enforcement machine.

Or both. So, my question: If enforcing the copyright rules for clubs, cafes, and stores is happening on this scale in lil’ ol’ West VA, how’s this playing in Austin, Nashville, and New York? Or Branson, Missouri, for that matter?

It should be noted, by the way, that ASCAP posted record revenues last year: $785 million, of which they paid out $680 million to their members. So I guess it’s working.

EMI & Radiohead: “Sticking It” to The Fans?


Yesterday’s entry was about the news of a majority of fans deciding that the right price for Radiohead’s pay-what-you-want experiment was zero, although now the band is disputing those figures.

So, if zero is sublime for fans, what’s ridiculous? A poster to Wired’s Listening Post music blog the other day got it right: “wow, an idea that comes so very close to being good!”

The reaction was to the announcement by Radiohead’s (ahem, FORMER) label EMI, which, announced in an innovative “digital box set” approach to all six of the English band’s releases on its subsidiary Parlophone: Pablo Honey, The Bends, OK Computer, Kid A, Amnesiac, and Hail To The Thief, plus the live album I Might Be Wrong.

So far, so good. Making a little hay while the sun breaks out over the In Rainbows hoopla. The words of Wired pick it up from here:

Unlike the digital version of In Rainbows, this box set has several high fixed prices depending on which format you choose: downloadable MP3 (320 Kbps, $70), a CD box set ( 7 discs, $80), or a 4GB USB drive (WAV files and artwork, $160). It’s odd that the CD box set costs half as much as the USB version, despite containing the exact same musical data.

“Odd” is putting it mildly. The fans are not amused:

$160 for a USB stick with music on it? Is that some kind of joke? A USB with a band’s entire back-catalogue: awesome idea, step in the right direction. That price is beyond insulting, though.

Yet another reason why the record industry resembles the Gang That Couldn’t Shoot Straight…


Somewhere, At the End of “In Rainbows….”

….didn’t lie a pot of gold for Radiohead’s “pay what you like” strategy. Give them props for trying, but as Digital Music News reported yesterday, 62% of the downloaders of the English progrock band’s seventh album (only available via Radiohead’s website) paid nada for it.

Bubkus.

Zilch.

On the other hand, that means that 38% DID pay something, so the experiment wasn’t a total bust. Average price: (according to ComScore) $6.00. But that’s a little deceptive: Turns out that in the US, the number of purchasers was slightly higher – 40% – and they paid an average of $8.05 for the album download…which means that 36% of the rest of the world paid an average of $4.64!

I think it’s too early to deem this a “success” or “failure” (I pointed out in an earlier post that mainly-classical boutique label Magnatune has been taking this approach for a couple of years now), save for the inescapable truth that the value of a recorded piece of music is being driven ever downward.

AND, I suspect that this is partly psychological, but this situation is exacerbated once the “physical product” is taken away. In other words, when there’s no old-fashined vinyl album, CD, or any other physical manifestation, just what is “it” that you’re holding in your hand?

An iPod or a cell phone, dummy. And they are selling quite handsomely, at a more-than-decent markup. So how do make any money selling music?

Jerry Del Colliano’s Inside Music Media post today puts it this way:

Some 62% of Radiohead’s fans stiffed them at the tip jar.

100% of AT&T’s cell phone customers pay them every time they text message someone.

Is it getting any easier to see the solution?

Music is priced too high. The marketplace is speaking and no one is listening.

Music for the price of a text message — addictive, compulsive and easy to collect.

Now that’s money in the bank.

In my next post: How Radiohead’s former label, EMI, is taking advantage of their Internet buzz….

Required Reading – The Well-Tempered Web


In the Oct. 22 issue of the New Yorker you’ll find
a Critic At Large piece called “The Well-Tempered Web” – in essence, a Postcard from the Brave New Media World, written by Alex Ross. There’s a reason Ross is at the top of the list on my blogroll….this is one of the best, most stylishly written and comprehensive snapshots of what’s happening with classical music online, and its implications for the future. Ross writes about a lot of the things I’ve been trying to see and describe in this space, though, in my experience, the scenario is not quite as rosy as he paints. Sample grab:

Classical-music culture on the Internet is expanding at a sometimes alarming pace. When I started my blog, I had links to seven or eight like-minded sites. Now I find myself part of a jabbering community of several hundred blogs, operated by critics, composers, conductors, pianists, double-bassists, oboists (I count five), artistic administrators, and noted mezzo-sopranos (Joyce DiDonato writes under the moniker Yankee Diva). After a first night at the Met, opera bloggers chime inwith opinions both expert and eccentric, recalling the days when critics from a dozen dailies, whether Communist or Republican or Greek, lined up to extoll Caruso. Beyond the blogs are the Internet radio stations; streaming broadcasts from opera houses, orchestras, new-music ensembles; and Web sites of individual artists. There is a new awareness of what is happening musically in every part of the world. A listener in Tucson or Tokyo can virtually attend opening night at the Bayreuth Festival and listen the following day to a première by a young British composer at the BBC Proms.

Those who see the dawning of a new golden age should bear in mind the “Snakes on a Plane” rule: things invariably appear more important on the Internet than they are in the real world. Classical music has experienced waves of technological euphoria in the past: the Edison cylinder, radio, the LP, and the CD were all hailed as redeeming godsends for a kind of music that has always struggled to find its place in American culture. At the end of such bouts of giddiness, classical music somehow always winds up back where it started, in a state of perpetual fret.

Thanks, Alex. I’ll go back to fretting now. I think there’s still a critical missing link having to do with music education (or lack thereof) and the general broader cultural awareness of events outside of the roar of the pop-culture surf, which is what’s driving the UTunes: Music 1.01 project.

Ross also makes a marvelous point about the utterly transparent online accessibility of arguably the most inaccessible of all composers….Arnold Schoenberg. Throwing copyright concerns to the winds, the Arnold Schoenberg Center in Vienna has created a transparent, robust, and comprehensive site dedicated to the inventor of “twelve-tone” music, a man some (like John Adams, f’irnstance) to have led classical music down a 75-yeard spiritual dead-end.

On the site, you can read immaculate digital reproductions of Schoenberg’s correspondence, listen to his complete works on streaming audio, examine his designs for various inventions and gadgets (including a typewriter for musical notation), and follow links to YouTube videos of him playing tennis.

And there’s this trenchant “deep catalog” observation:

Classical music, with its thousand-year back catalogue, has the longest tail of all. In Naxos’s case, thirty to forty per cent of its digital sales in the U.S. come from albums downloaded four times a month or less. Thus, a not insignificant portion of the company’s revenue comes from titles that, by Justin Timberlake standards, don’t exist

Required reading, if you care about classical music.

Link

The Madonna Model or the Radiohead Revolution?


So Madonna has given Warner Brothers the boot in favor of concert promoter Live Nation, while at the same time Radiohead has devised a pay-what-you’d-like scheme for their latest self-produced, self-distributed release, thumbing their noses at long-time label EMI. All in the space of a few days. The blogosphere – and the mainstream media, for that matter, are all a-twitter.

Have we reached, then, the Tipping Point? Is it curtains for certain for the much-lambasted Record Industry?

Frankly, I think the tipping has already happened. And I’m also not persuaded that the record industry’s days are over …. so long as they don’t think of themselves solely as purveyors of recorded, um “product” as Billboard magazine terms it.

One of the things I’ve discovered in plying the classical, jazz, folk, etc. waters over the years is that these minority formats tend to be the canaries-in-the-coal-mine for the bigger genres. Long before it was a gleam in Thom Yorke or Trent Reznor‘s eye, the excellent classically-oriented Magnatune label was offering the pay-what-you-think-its-worth option. And for some serious artists with serious credentials, too, many of whom had recorded for the so-called “major” labels. The Economist introduced me (and, it turns out, a whole of folks) to the Magnatune concept more than two years ago:

From a listener’s point of view, the firm’s website is enticing. You can legally listen, free of charge and with high sound quality, to full albums by any of the 200 or so artists who have signed to the label. (Your correspondent was immediately hooked by a song called Making Me Nervous by a one-man electro-pop band from Ottawa called Brad Sucks.) Music streamed is free, but to download it to your computer or burn CDs, you have to pay. Just how much is a matter of choice—Magnatune allows you to decide what the music is worth, and to pay as little as $5 for an album or as much as $18. Once paid for, the music is not locked up using digital-rights management software, so you are not prevented from making copies.…

Magnatune was born out of the simple reality that is known to any classical musician: You don’t make your money from record sales. There are possibly a half-dozen living classical musicians you have a positive income stream from their recordings: Yo-Yo Ma, James Galway, Renee Fleming, Placido Domingo, Van Cliburn, and… Andrea Bocelli? Go ahead, name another.

Same is true in jazz. I’ll bet the only artists that actually get any meaningful income from records are Dave Brubeck (thanks to the perennial popularity of Time Out, released in 1959) and maybe Diana Krall.

And even in larger the pop-music sea, that’s not and never has been where the money is — for 90% of the artists, that is. Even in the best of times working with a label was a deal-with-the-devil cost-of-doing-business proposition: You signed with a major because of the potential they represented to promote, market, and, if you got lucky, actually to move mass quantities of your physical “product” into the hands of your fans. Can’t do that selling your self-produced record out of the back of your trunk and running handbills off on a mimeo machine in the back room.

Hmmm…but in the iTunes world you suddenly don’t have to worry about having the supply to meet the demand, do you? Thus a big-name well-established act like Radiohead, with a carefully-cultivated image-conscious fan base, doesn’t really have much more use for EMI. No wonder the label’s new prez Terry Hands said it was a “wake up call,” according to a leaked internal e-mail:

The recorded music industry… has for too long been dependent on how many CDs can be sold,” Hands wrote. “Rather than embracing digitalization and the opportunities it brings for promotion of product and distribution through multiple channels, the industry has stuck its head in the sand.”

Hands warned that more artists could follow Radiohead’s lead and take their careers into their own hands. “Why should [superstar acts] subsidize their label’s new talent roster – or for that matter their record company’s excessive expenditures and advances?” asked Hands.

Why indeed? And that’s where the Madonna / Live Nation model is so interesting — it’s part of a larger chess match within the music industry:

Madonna’s deal to abandon Warner Music for concert promoter Live Nation signals more than just a tectonic shift in the music distribution business: It shows how far Live Nation is willing to go to break the hammerlock Barry Diller‘s Ticketmaster has on online concert ticket sales.

The core benefit to Live Nation of the $120 million recording and touring contract with the pop superstar is the opportunity to tap into concert, recording, merchandising and other lucrative revenue streams. But don’t discount the role that lowly ticket fees play.

   

Ticket buyers may be annoyed by the $5 or more in fees tacked on to every ticket ordered online or over the phone, but they’ve proven to be a gold mine for Ticketmaster. Ticketmaster’s revenues jumped 14 percent to $1.1 billion in 2006 and generated almost a 25 percent operating profit margin.

Thus, To these eyes the “three-CD deal” (with up to $50 million in “advance payments”) is really a “signing bonus” for Madonna, in order to cash in on where the REAL money will be made. I think Digital Music News editor Paul Resnikoff gets it right:

“…You can’t download a live concert – at least the real, in-the-flesh experience. Maybe you can hop onto BitTorrent and grab some amazing concert footage. Or even purchase a live performance album release. But what is your girlfriend (or boyfriend, bff, sibling, spouse, child, etc.) going to get more excited about – a video download, or a real ticket to a real show?One can be duplicated, viewed on-demand, and buried within a massive iTunes library. The other is a one-time, once-in-a-lifetime opportunity. Labels are now specialized in producing assets that can be reproduced instantly and infinitely. They are also specialized in an asset that is increasingly generating excitement for other assets they do not control.

Live Nation makes its money off of something that can never be duplicated. And that is why they can afford the elephantine deal terms to lure Madonna.

And even, if they don’t get all of the $120 million back out of Madonna (who will be 60 when the deal ends!), what’s the value to Live Nation if they can break Ticketmaster’s hammerlock on sales??? I’d say……Priceless.

So after reading all this, there IS a next logical step for the much-maligned record companies….what if Ticketmaster, for example, went out and bought EMI, a well-oiled production, distribution, and marketing machine?

Sunday Funnies

Okay, let’s resume our normal breathing. What I intended to write about today (okay, two days ago, actually…the RoeDeo travel schedule has put me behind on the blogs again) was a lot more mundane, but not unrelated to the previous post. I’m an inveterate reader of comic strips. Even the most boring, tired ones. Thanks to newspaper consolidation over the years, my local rag, the Washington Post, has three pages full of ’em. So why am I telling you this? Well, with a few notable exceptions (Doonesbury, Zits, anything Berkeley Breathed does, the comics page rarely has its pulse on the zeitgeist. In fact, part of its charm is how surpisingly tin the ears of comics creators can be. Thus i was astonished to see in last Sunday’s funnies the first appearances in comic ink of the words “YouTube” and “BiTtorrent.” The first was courtesy of Doonesbury author Garry Trudeau – depicting feckless Uncle Duke “uploading his old campaign videos on YouTube,” to the horror of his K-street lobbyist son. Even better – the Videos are actually on the site! Trudeau explains how they got there on his site. Even more surprising was where “BiTtorrent” appeared – in Bill Amend’s invariably-mild Foxtrot strip – a surprisingly political strip where young technonerd Jason is teaching his iguana how to download to escape the wrath of the “RIA.” Hmmmm. Forget this temporary victory represented by the copyright ruling; if the Sunday funnies are discussing Bittorrent, has the larger war been lost?? (And now that Foxtrot is a Sunday-only strip, are Amend’s creative juices flowing a little more?) PS – discovered a few years ago an entire subculture that delights in the howlers that come from the Mark Trail strip — triumphs, or tragedies, depending on your viewpoint, of art, style, culture, and fact…