As anyone in politics knows, admitting the obvious can get you into a whole lot of trouble. NPR intern Emily White recently discovered this unfortunate fact the hard way, when she admitted in a blog post that she had 11,000 music files in her library. The problem? She had only bought 15 CDs in her lifetime. I for one was surprised that a 20 year old American college student would own that many CDs, period, but much of the Internet went abuzz over White’s post—some applauded her for pointing out what they see as realities of a changing digital environment, but many others reacted with indignation. Who was this insouciant young blogger who didn’t feel guilty about taking food out of the mouth of helpless, starving musicians?
That is, in a nutshell, what David Lowery wanted to know. In a scathing response—which the LA Times oddly described as “compassionate”—Lowery dressed White down for disregarding the rights of musicians to their work. He argued that the idea that musicians could subsist on proceeds from touring and merchandise was a convenient illusion, and that file-sharing has devastated music sales, artist incomes, and even the ranks of those willing to play music for a living. The most eye-popping part of his response implicated Emily White and other music thieves in the tragic suicides of folk singer Vic Chesnutt and Sparklehorse’s Mark Linkous, suggesting that lost income to file-sharing contributed to their struggles with health and eventual deaths.
Never mind that Chesnutt had been paralyzed in a car accident, a quadriplegic since the 1980s, and had struggled with medical bills and mental health long before Napster appeared (as attested by the 1996 benefit compilation Sweet Relief II: The Gravity of the Situation). Or that he and Linkous’s own personal and financial hardships might never have been so dire if our healthcare system were not so profoundly inefficient and unequal. All you music listeners with the vast iTunes collections have their blood on your hands.
It’s discouraging to see this bitterness coming from an artist I’ve admired for years. This is not the Lowery of “Life Is Grand.” His band Camper van Beethoven was an indie institution of the 1980s, a quintessentially playful, slightly off-kilter underground band that mixed up ska beats with violins, Russian folk songs with lyrics about skinheads, Mao, and cowboys on acid. Lowery later went on to form Cracker, a group that found a modest degree of success with alt-rock hits like “Low” in the 1990s. To me, Lowery seemed to create a template for a genre-bending, literate kind of rock music, followed by indie artists too numerous to mention (Pavement comes to mind).
Yet I may be one of the guilty ones. Though I loved CVB, the only actual CD I had ever bought of theirs was Key Lime Pie (1989), way back in high school. I think I got a live EP when the band reunited a few years ago, but it was bundled with a disc by another artist I bought; I also happened to download their album Our Beloved Revolutionary Sweetheart (1988) from iTunes a few weeks ago, before this whole kerfuffle blew up. In the intervening years, though, I enjoyed listening to “Eye of Fatima,” “Take the Skinheads Bowling,” and other CVB classics—these were songs my friends and I played and replayed through college and beyond. We had gotten them through file-sharing sites, and I may have derived more pleasure from these tracks than from the one record I bought.
All told, I have probably contributed less than $25 to CVB over the years, and I probably buy more music and attend more concerts than the average person in the early twenty-first century. Is $25 a just amount for all the times I’ve sung along with the words, “Every day, I get up and pray to Jah!” in my car?
Maybe, maybe not. Some would say that the market determines what something is worth—it is worth what people willing to pay for it, and how much someone else is willing to take in order to part with it. Lowery and other critics of file-sharing would say free music distorts that market mechanism, since fans will opt for a cost-free choice if one is available, and the abundance of free product undermines the artist’s (or the label’s) bargaining power.
There is much to be said for this point. In fact, I have recommended Lowery’s other writings on the issue to students in my courses on media history, to complicate any breezy assumptions about how “Information wants to be free” and “free culture” doesn’t hurt anyone. (In a curious aside, it has been my observation that the most privileged students in elite institutions are those likeliest to believe free culture is always a good thing, while working or middle class students have been more inclined to defend the artist’s right to their work—but this is totally anecdotal.)
The most important point Lowery makes is that simply citing the evils of record companies is no answer. It is not enough to say the industry used to exploit artists, so the new system of digital distribution is not so bad—in other words, it’s okay for us (or Google, or Megaupload) to exploit the musician. This argument has always reminded me of the notion that marijuana should be legal because alcohol is a dangerous drug and it’s legal. Just because something that’s just as bad, if not worse, is accepted by society is not much of an argument for accepting something else that may also be bad. (Of course, there are good reasons for legalizing pot in my view, but the evils of alcohol is not one of them.)
As far as music goes, such an attitude could lead to a “New Boss, Worse than the Old Boss” situation, as Lowery suggests. Certainly we don’t want to swap one group of shady middlemen with another, as file-sharing overlords like Kim Dotcom get rich off of artists’ work like the record execs of old.
Throughout most of history, middlemen have tended to benefit the most from art—from the printers who actually held the earliest copyrights in England, instead of writers, down through the radio stations, record labels, and publishing houses of the twentieth century. Generally speaking, only the most successful creators have been able to gain leverage over the middlemen and dictate more favorable terms. That does not mean exploitation is alright, but we should not be surprised if a new set of intermediaries emerge (such as Amazon or Spotify) to profit from the exchange of artists’ work.
So where does that leave us? The obvious truth is the one Emily White pointed out: most people in their teens, twenties, and thirties today who own a computer are likely to have much, much more music than they ever paid for. I currently have 6,587 tracks in my iTunes library, amounting to nearly 18 days of music. A fair amount of it I have never even listened to, having gotten it from friends’ CDs or flash drives, and it is beyond safe to say that I would have never bought much of this music if it were not available for free. Only 228 items are in my “Purchased” folder (meaning purchased from iTunes). Before anyone goes off about how only 3% of the music in my library was paid for, keep in mind that the files have been accumulated over years, an unknown portion of it comes from CDs I bought in the past, and the 228 only represent tracks purchased since buying this laptop less than a year ago.
All told, not the picture of unrepentant piracy—but also a clear indication that I’m enjoying access to a big chunk of music I never spent a dime on. To put it in more tangible terms, Jolie Holland is one of my favorite musicians. A friend first loaned me one or two burnt CDs of her music about eight years ago; since then, I’ve bought one CD (Catalpa), downloaded another album (The Living and the Dead) from iTunes, and saw her perform at Eddie’s Attic in Decatur, GA. I may have spent something like $50 or $60 on this artist’s work. Is this a fair exchange? Is this the appropriate dollar amount to put on my appreciation for this artist? Or should I have paid for every single sound I’ve ever heard her create?
These questions speak to the very unusual character of music as a commodity. In modern life we are surrounded by sound, from the unstructured white noise of air conditioning to the Muzak of the mall; from the over-loud iPod blaring on the bus to the street musician in the subway. We hear music in the car, on the radio, on the street; we hum songs in the shower and whistle while we work, swap CDs and sing in church and school. Not every experience of our shared culture is monetized, which is quite exactly why it is shared culture. ASCAP and BMI, of course, make sure that radio stations and restaurants compensate songwriters for commercially exploiting their work, the proceeds from which go through a complicated (and debatable) formula to artists. Media theorists Sut Jhally and Bill Livant famously argued that we work for radio and television in this way by listening to or watching ads, in exchange for the payment of “free” programming (songs, sitcoms). From another perspective, it is our potential buying power as consumers that “pays” for broadcast TV and radio, although even the poorest person with no buying power can enjoy the sensation of free sound emanating out of the ether. Some of our most intimate and powerful experiences from music often occur in those moments when no money has changed hands.
Lowery and other critics of free culture often assume that the artist has a right to get every possible cent out of the enjoyment of his work, but the entire history of art and property rights attests that this is just not true. Prior to 1976, most creative works that were published but not formally registered for copyright went into the public domain. A federal copyright for sound recordings did not even exist in the United States until 1971. Copyright has always been a limited right, even if industry types like Hollywood’s Jack Valenti felt like copyright should last forever. How much would it make sense to seek out Shakespeare’s descendants to get permission to stage Hamlet?
The oft-repeated metaphor that file-sharing is like stealing a book or DVD from Barnes & Noble, because intellectual property is exactly the same as physical property, also doesn’t hold up. iTunes does not have one less track if I rip an mp3 from YouTube, but a dealership does have one less car if I steal a Chevy Volt. It is also fair to say that art and music mean something different to us than cars or any other manufactured good. A car will get you from home to work for a few years; Shakespeare and Mark Twain tell us about who we are and were, and open up new perspectives on the human experience. There is a reason why we have a public domain for songs that are 100 years old but not for antique cars.
Moreover, piracy—or unauthorized copying, if you want a less loaded term—has been around since the start of the music industry. It has been practiced by some greedy, self-serving figures from the 1890s onward, as well as committed fans and collectors who wanted to keep out-of-print music in circulation. Bootleg labels, for instance, put out copies of old, hard-to-find blues and jazz records in the 1950s and 1960s, after their original labels stopped selling them or went out of business. As Duke law professor James Boyle argues in The Public Domain (available for free online), the vast majority of creative works ever produced are out-of-print. Publishers and record labels can’t afford to keep a marginal or obscure work available, and stores and libraries have limited shelf-space. The advent of digital outlets like iTunes or Google Books has removed some of the material constraints to maintaining access to commercially less viable works, but much of our heritage remains obscure or lost; worst of all are “orphan works,” for whom the current, legitimate copyright holder is nearly impossible to determine. Many such works will simply not be available to the majority of people, stored away, if anywhere, in a library or museum.
A more contemporary example would be concert bootlegs on YouTube. Although copyright owners retain the right to request unauthorized clips to be removed, the site still abounds with live footage of countless artists. Before, a band might choose to put out one or two concerts on VHS or DVD, but the majority of their performances would vanish into the air. Now my stepdad can watch all the vintage Styx he wants online. Is the availability of this work damaging the market for Styx’s other music? Probably not. Is Google profiting from their work? Yes. Are fans getting something for free? Also yes. Is this fair? Maybe.
Piracy or bootlegging or free culture will step in when the market refuses to give listeners what they want, or when it’s simply infeasible or impossible for certain works (like out-of-print titles by obscure artists, or concert bootlegs) to be produced for profit. This is what the long history of the record industry tells us, from the jazz era of the 1940s to the profusion of jam music, hip-hop, and punk on bootleg tape in the 1970s. A new cycle has unfolded with the prevalence of mixtapes—free recordings where hip-hop artists experiment wildly with samples in the way earlier musicians did before copyright clearances became prohibitively expensive and inefficient. It is not surprising, perhaps, that two of my favorite albums of recent years, Shut Up, Dude and Sit Down, Man, by Das Racist were offered for free download. The industry is clearly in a stage of transition, as it once was during the shift from shellac to vinyl in the 1940s and vinyl to cassette in the 1970s.
Actually, there was not a lot of space between Emily White and David Lowery’s real positions. Both advocate for a fairer system that compensates artists while giving fans what they want. As White said in her controversial post:
What I want is one massive Spotify-like catalog of music that will sync to my phone and various home entertainment devices. With this new universal database, everyone would have convenient access to everything that has ever been recorded, and performance royalties would be distributed based on play counts (hopefully with more money going back to the artist than the present model). All I require is the ability to listen to what I want, when I want and how I want it. Is that too much to ask?
Now while something like Spotify may be a solution for how to compensate artists fairly in the future, it is not a fair system now.
In other words, both agree with the idea of an online streaming service that compensates artists in principle—Lowery just thinks Spotify’s current formula offers musicians too little. This is not a gigantic disagreement. The heat and the light seem to result from his general irritation with White’s huge, unpaid collection of music, and the fact that she does not feel like there is anything morally wrong with it. I suspect that Lowery had a stack of mixtapes in his bedroom once upon a time—he might still have a spindle of CDs friends have burned for him. Or perhaps Lowery has been principled enough to never accept a single note of recorded music from anyone else, preferring to acquire all of his music from the local record shop. It’s possible, but I doubt it.
What has changed is the scale of sharing. Even if I had a huge number of friends in high school (believe it or not, I didn’t), and even if they had large music collections which they shared with me, I would never have had the time or energy to tape every CD they owned. It is a lot easier to get dozens or hundreds of tracks from a friend now, just like it’s easier (i.e. less labor-intensive) to burn a CD from an mp3 playlist than it was to patiently record each song on a tape back in the day (the day being 1998).
Things have changed, and we’re learning to adjust. The industry did not want to adjust, which left it clubfooted in the face of digital distribution, and even today Lowery has a touch of the annoyed elder when he scolds White for not owning more CDs. Incidentally, White’s employer NPR is a fine example of an organization that functions on a quasi-free basis, supporting a rich variety of programming on voluntary support. If I had to pay a dollar every day to buy a magazine containing all the information and insight contained in several hours of NPR, I do not think I would do it. (I also think most weekly magazines contain less substance than NPR provides in a day, but that’s a side point.) I am willing to pay for it, in any case, even though it’s free. This is a model that Radiohead famously attempted with its 2007 release In Rainbows, and other artists are exploring. (Lowery even suggests something similar when he advises White pay her “penance” by donating to an organization that helps artists, although that may have been sarcastic.)
It is hard to say if this model will work, or if artists can negotiate a better deal out of Spotify, iTunes, Pandora and other outlets that make their work available online. From my own personal experience, I can say that digital distribution has made a great deal more music available than ever before—and one need not live near a large city with a cool indie record store or have the benefit of a hip older sibling to get hold of it. Although it’s impossible to measure, I think that the music I’ve gotten for free, either online or from friends, has prompted me to go out and buy other music and attend concerts by artists I never would have heard of (and whose records may not be available on the shelf of even the indie record shop). The numbers for record sales show a clear drop since 1999, first with the introduction of Napster and then again with the mid-2000s advent of YouTube and other sites. This would seem to weigh against the possibility that all this sharing is leading to greater revenue, although I’m not sure if such figures pick up sales at shows and other kinds of income.
In any case, the drop in sales does not mean a new model, even one that involves a good deal of sharing and free music, can’t work. It has before and it can again. These same issues of fairness and the public interest have been hashed out time after time, as when composers sought to get compensation from the disc and piano roll manufacturers that recorded performances of their songs in the 1900s. Hopefully a new compromise would involve a more direct connection between artists and fans, and less of the hype that propped up mediocre pop stars and drown out great independent artists (like Camper van Beethoven). The renewed enthusiasm for vinyl in recent years suggests that committed music fans will pay for the pleasures of quality recorded music. The answer, though, does not mean insisting that fans exchange money for a material thing, or that every single musical experience ought to be part of a commercial transaction, or that the rights of artists are eternal and inviolable. It also probably does not involve accusing music lovers like Emily White of murdering their heroes.
In a final irony, the system proposed by White could monetize the consumption of music in an unprecedented way. Here’s how: whenever I listen to “Take the Skinheads Bowling,” it would register as an extra play for Camper van Beethoven, counting toward whatever share of Spotify’s revenue the band would receive. Such a system could provide a more reliable stream of income to artists than the old arrangement, where I paid $15 for Key Lime Pie and that was the last time CVB ever heard from me, whether I listened to the album once or a thousand times. Ironically enough, the dream that we pay for everything we listen to might actually come true, thanks to piracy.
For other perspectives, see:
David MacDonald, “Can We Ease Up on Emily White a Little Bit?”
Jay Frank, “Is Stealing Music Really the Problem?” (Billboard Biz)
Ian S. Port, “Top 8 Reasons to Pay for Music, Even if You’re Young, Broke, Lazy and Indifferent” (SF Weekly)
Travis Morrison, “Hey Dude from Cracker, I’m Sorry, I Stole Music like These Damned Kids when I Was a Kid” (Huffpo)
“The Tale of Emily White, Scarcity, and the Future of Music Products” (Music Industry Blog)
Mike Masnick, “RIAA Accounting: Why Even Major-Label Musicians Rarely Make Money from Album Sales” (Techdirt)
Steve Albini, “The Problem with Music”
Jonathan Lethem, “The Ecstasy of Influence” (Harper’s)