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The Loweryquake June 27, 2012

Posted by Bill Rosenblatt in Economics, Law, Music, Uncategorized.
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David Lowrey is a semi-legendary musician in one of techdom’s most beloved genres, indie rock.  He sits on Groupon’s advisory board.  He’s neither a rich rock star nor a spokesman for the RIAA.  As a university professor, he is more a beneficiary of what Larry Lessig calls “the academic patronage system” than of copyright.  In other words, you’d expect David Lowrey to be one for “sticking it to the man.”  Yet last week, he wrote a 3800-word masterpiece about the dire state of musical artists in the digital age and the moral compromises that got us there.

As everyone involved with music knows by now, Lowery’s “Letter to Emily White” was originally occasioned by a blog post by an intern of that name at National Public Radio, who admitted to being a big music fan and possessing 11,000 tracks of digital music but only having paid for less than 2% of them (which puts her well below the generally-accepted figure of 5%).  It went viral online and got mentions in the New York Times as well as other major media and blogosphere outlets.

Paul Resnikoff in Digital Music News said it best, in perhaps the most cogent piece of analysis I’ve ever read from him:

Our digital innocence just died … after a decade of drunken digitalia, this is the hangover that finally throbs, is finally faced with Monday morning, finally stares in the mirror and admits there’s a problem.  And condenses everything into a detailed ‘moment of clarity’.

Over the years, I have written occasionally about the “race to the bottom,” in which the price of content is tending inexorably towards zero.  The massive amount of free and illegal content available now, coupled with legal content services’ needs to “compete with free,” has led to more and more legal content offers for less and less money.  Emily White’s frank admission shows that, for a growing number of young people, the race to the bottom in music is over, and musicians and songwriters have lost.

I won’t comment on Lowrey’s piece per se, except to recommend strongly that you read it.  And I will say that as I read more of the posts on his blog, The Trichordist (by other authors as well as Lowrey himself), I found some attitudes about intellectual property that I felt were a little extreme and/or ignorant in their own ways.

Instead, I want to focus on the range of comments people have posted about Lowrey’s Letter to Emily, particularly the negative ones.  The Trichordist curates comments by hand (and has been “accused” of favoring positive comments heavily as they cope with comment volumes that are orders of magnitude higher than usual), but they have appeared unfiltered on other sites — thousands of them.

Some of the negative comments are sober economic arguments that conclude with “This is just the way it is, and we can’t change it, so we all just have to adapt,” citing principles such as supply and demand, value migration, or cost of goods sold.  While I disagree with the “we can’t change it” part, the economics are hard to argue with.

Yet the bulk of the negative comments are remarkable for their defensive attitudes, as expressed through smugness, arrogance, misinformation, rationalizations, and most telling of all, outright hostility towards Lowery.  Many of them remind me of the rhetoric of right-wing political extremists when backed into a corner.  Apart from the ad hominem attacks against Lowrey, the negative comments fall roughly into the following buckets:

  • Economic rationalization (record companies): The record companies rip artists off anyway.  Lowrey rips this one apart in his piece.
  • Economic rationalizations (artists)Musicians can make money touring instead. Ditto.  (Did the people who wrote these comments actually read Lowrey’s piece?)
  • Economic rationalization (users): Emily is just a poor young intern and isn’t able to pay for that music anyway.  See below on the perceived value of music.
  • Legal rationalization: What Emily did was “fair use.”  When your prom date gives you a “present” of 15GB worth of digital music, it’s probably not fair use.  (Of course, that this is even a question is a problem with fair use itself, but that’s another subject.)
  • Terminological distractions: So-called piracy is not “stealing” because the original remains once you have copied it. As even TechDirt’s Mike Masnick points out, what you call it doesn’t matter; it’s copyright infringement, which is against the law.
  • Exceptions that prove the ruleSo-and-so has figured out how to thrive under the new system, so there must be ways to do it.  This one is Masnick’s specialité de la Maison.  He seeks out these examples in order to encourage others to follow them.  That’s fine, but they continue to be few and far between.
  • Market research cherry-pickingI saw a study that says that piracy actually benefits music sales and/or the RIAA/MPAA’s piracy studies are biased.  Let’s agree that no study of the economic effects of copyright infringement is both methodologically unassailable and unbiased, and perhaps that the “real” effect may be unmeasurable.  But if we’re going to cite studies, we should at least look at all of them instead of putting up strawmen for the purpose of knocking them down. I have  looked at all of the studies (and not just those about music) and found that those that claim economic damage from infringement outweigh those that claim economic benefit by a wide margin, even when studies commissioned by the RIAA or MPAA are ignored.

I am also reminded of a conversation that took place at the Copyright and Technology conference last week in London.  The eminent copyright litigator Andrew Bridges echoed the common copyleft refrain that “copyright infringement is not a problem” except perhaps that “some companies are losing money.”  He also asserted that the sky-high statutory damages under United States law act as an effective deterrent to copyright infringement because they scare people.

I disagreed with both statements.  The case of Emily White is the best counter-argument I could have made to both points if I had known about it at the time.  For every Joel Tenenbaum or Jammie Thomas-Rasset who makes headlines getting nailed for copyright infringement (and getting Harvard Law professors to defend them), there are  millions of Emily Whites who don’t, and millions more who have no idea about copyright infringement, let alone statutory damages.

However, none of these arguments addresses the real problem.  The real problem is that the value that people perceive in music has virtually disappeared.  As Jaron Lanier pointed out in his book You Are Not a Gadget and subsequent writings, there is a profound cost to society as the perceived value of original content goes to zero.  And the cost goes well beyond questions of whether there is “enough creative content” if artists can’t make livings.

Lowrey’s Letter to Emily is more about morals and ethics than about the inherent value of content.  The problem is that simply preaching ethics to people in order to get them to change their behavior doesn’t work.  At best, as Ben Sisario points out in the New York Times, this gets musicians to the status of charity recipients.

A more recent post on The Trichordist, by Lowrey’s Camper Van Beethoven bandmate Jonathan Segel, focuses exclusively on perceived value — after providing an illuminating history of musicians’ compensation since Beethoven.  Killer quote:

What is happening here seems to be a willful ignorance that the inherent value is still there, not being paid for in the distribution of additional copies. These same individuals would certainly make the claim that they are copying the music in order to listen to it … but are refusing to admit the relevance of the social contract that says that that inherent value is what is used in the exchange rate with monetary currency. I see this as a hypocrisy: either music has no value at all, (in which case why copy it to begin with?), or it has value and the copiers are refusing to admit that it does, simply because it is a copy.

Once this behavior becomes normal — i.e. becomes standard practice for the Emily Whites of the world — then the taint of hypocrisy disappears.  Once that happens,  concern over the value of content evaporates, as then does the value itself.

The time for questioning whether or not this is a problem is over.  The proper question is how to solve it.

Comments»

1. Bill Rosenblatt - June 28, 2012

Matthias Spielkamp of iRights.info writes:

Bill,

great post. And very important to get to the question of value. People can value content a lot without being willing to pay for it. This can sometimes (often) be hypocrisy, it can sometimes be the result of new models of content creation (Wikipedia). Jonathan Segel argues there’s only value if you pay on a per-content-item basis. I take it that you agree. That might just not be the case. Alternative compensation models could be an alternative. I know that many people find them far-fetched ? but fundamental problems sometimes call for bold answers.

My reply:

Thanks. Regarding paying on a per-content-item basis: this is where I part company with both Segel and Lowrey. I don’t believe that pay-per-item should be the only way to compensate for the value of content; in fact, I believe that this is an artifact of the copyright system from the physical era that becomes somewhat silly in the digital age and really ought to fade away over time.

If you think about it, the original way of paying for music (let’s stick with music for now) was paying for concert tickets, which is a form of pay-per-use. Many have suggested pay-per-use models for recorded content over the years, going back (at least as far as I know) to the computer scientist Brad Cox in the mid-1990s. When looked at this way, the iTunes model becomes an “alternative compensation scheme” in which you pay once for unlimited uses. This is worth it to you if you expect to play a track more than X number of times. There have been attempts to charge users per stream (e.g. La La), but these haven’t caught on with consumers.

(Personally, I obtain all my music legally and pay for most of it through my subscription to a streaming service. I recently switched to MOG from Spotify. Though Spotify has a somewhat deeper catalog, MOG is superior in sound quality, low bitrate, and user interface, at least on Android. I am a “grazer” who listens to something for a while and then moves on, so I’m probably atypical, but I only pay per content item when I have no other choice, and usually on CD. I never use iTunes. I also use Pandora and other streaming radio sometimes.)

Lowrey and others complain about low artist payouts from Spotify, owing to the deals that the record companies made with it. I can understand their point, but to me this is just an extension of the complains musicians made about iTunes enabling people to buy single tracks instead of albums. Let’s remember that there was no such thing as an album until around the 1950s.

Streaming remuneration is also an example of what I have called the race to the bottom – examples of what happens when you have to compete with free. It’s hardly surprising that newer models have to cost consumers less in order to appeal to them. Is this bad for artists? Yes, at least for now. Personally I am comfortable with the fact that services like MOG and Spotify are legal, as well as fitting my own particular listening habits.

Yet you use the term “alternative compensation,” which is often attached to things like levy schemes such as those you have in Germany or what I call the flat-tax proposals on ISP subscriptions. I am not a fan of these at all, for reasons I can go (and have gone) into separately. The best I can say about them is that if someone managed to convince me that this was the only possibility left on earth for compensating rights holders, that nothing else was ever going to work, and they put a loaded gun to my head, I’d admit that they are better than all content being free.

2. Quickthink » Blog Archive » BTW, ACTA is Now Dead - July 4, 2012

[...] all would agree that the questions are well aimed. Copyright and Technology, for example, has a long post arguing that popular acceptance of taking musical content without [...]

3. Jim Griffin - July 9, 2012

Bill Rosenblatt: “I am not a fan of these at all, for reasons I can go (and have gone) into separately.”

Bill, please point to a comprehensive list of your reasons, especially so relative to the existing baseline of blanket licenses, the rapid decline of music sales and the increasingly voluntary nature of payment for sound recordings (not legally or morally voluntary, but effectively voluntary by nature of choice and technology).

4. Bill Rosenblatt - July 9, 2012

Jim,

With respect, I’ll leave it to you to dig through my several years of writings on this subject to find the many reasons, if you’re really that interested.

Let’s just say for these purposes that if you were to solve the rights registry problem you’re working on *and* convince the bulk of the music world to adopt it, which means both implementing network-level technology that makes use of it and dropping the archaic, arbitrary, opaque, and unfair blunt instrument approaches currently in use, then I’d happily change my mind.

- bill.

5. ' Phrase ' ... Fraser Lindsay - August 22, 2012

Hello Bill Rosenblatt : … I will read more , and look forward to learning from … your writings. … thanx ! …
.
Jaron Lanier’s …”You Are Not A Gadget”…, also speaks of how technological design characteristics ( Web 2.0 ) can socially engineer, or help to enable negative behaviours , i.e. P2P’d to death . … To me, he seems to suggest that part of the answer to empowering content creators today , would be to add/redesign the WWW such that ‘ provenance ‘ would be restored to the originator , or owner(s) of copyright, rather than allowing search engines to provide that which could be openly available in a Ted Nelson type ‘provenance web model’.
.
… I believe the way forward is multifaceted ( education, moral/ethical awareness, public and private lobbying , legislation etc. ) … so i welcomed Lanier’s articulation of an aspect not discussed very often, the impact of technological design on culture. … Your thoughts are much more finely nuanced so i would welcome any further insights. … Thank You …with respect … phrase


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