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CounterPunch
October
17, 2002
The Politics
of File Sharing:
Clay Pigeons
by DAVE MARSH
A bright young man spent a fair part of Saturday
evening trying to convince me that file-sharing and "piracy"
were the reason that Eminem's new album has sold "only"
four million copies, like his last one did, but only four million.
How many artists whose last records sold
eight million sell that many or more the next time out? He didn't
know. The answer is damn few; it is probably more typical for
sales of a followup to drop off 50 percent or more, and that
was the case long before Bill Gates sold that evil gleam in his
eye to IBM.
How long did it take Eminem's previous
record to sell eight million? About twice as long as the new
one has been on the shelves. It reached those shelves early,
by the way, because the record label convinced itself  downloading was killing its market. The
most downloaded record of the year then had the largest first
week sales figure of the year. How did that happen? Could it
be that the Internet is more like radio than a back alley music
chop shop?
There are answers to all these questions,
but we don't have them because the RIAA and the cartel for which
it fronts are too busy trying to get us to pay attention to the
smoke and mirrors of their propaganda.
The bright young man, who is 23, bought
it all, not that it affected his behavior. He said that he and
almost all his friends never, ever bought records made by the
RIAA cartel. They burn copies-mainly at work-or buy burned copies
for $5 from stores that only sell pirates. I asked if he didn't
think, given that the pirate copies have lousy sound quality
and artwork, that what that mainly told us was that record prices
are too high. He said that the industry couldn't survive or "support
the artists" if kids sat at home downloading and burning
copies of Britney Spears albums. I asked why the industry had
to sell Britney and not a load of other stuff, but he said it
just did.
Having been educated in a system that
teaches the fashionable crackpot freemarket theories and raised
among people who until a few months ago thought those theories
worked perfectly, the young man couldn't back down. It felt like
I was herding him to the edge of a cliff. Since I don't think
the drop is very steep or anything but beneficial, I finally
gave him a shove: I told him about the cartel's September settlement
of the price-fixing case brought against it by 42 states.
The settlement will cost the record labels
$67,375,000 in cash, details of how fleeced record buyers collect
to be announced later. In addition, the major labels will give
the 42 state attorneys general 7 million music CDs (valued at
$75.5 million) to be distributed to "not-for-profit corporations,
charitable groups and governmental entities such as schools and
libraries."
Fred Wilhelms, who would be the industry's
ethicist-in-chief if the industry had ethics (which it doesn't,
because ethics violate free market principles), called a couple
of the attorneys general to ask how the artists who made those
7 million giveaway CDs would be paid. The NY state attorney general's
office said that the record companies were sure that the 7 million
discs were covered under the "free goods" provision
in standard artist contracts.
Fred asked if she'd like to buy a bridge.
Free goods clauses state pretty clearly that the records are
to be given away for promotional use, not sent to a lending library
(and taken home and cloned). "I think the settlement does
show far the industry is willing to work with the artists on
issues of mutual concern," Fred wrote me. "I think
there will be more than poetic justice if Stevie Wonder or any
of the other artists endorsing the MUSIC campaign [in favor of
music industry status quo] are on that distribution list."
What this is really all about is getting
the record labels' off the hook for insisting that consumers
be charged a minimum price for records.
That's right. The record labels don't
want discount retailers to sell you records at the store's cost.
There's actually a very good reason for this, which is that such
retailers chase record-only stores out of business. But rather
than address the problem in a legitimate way by lowering its
ridiculous prices-which any retailer will tell you do more to
kill sales than all the burners on Earth-they chose a minimum
price scheme that years of legal precedent indicated would never
survive scrutiny.
Who pays the price of being so stupid?
The record companies, who will pay about $12 million each, or
roughly half of what it cost EMI not to burden itself with another
Mariah Carey album. And the artists, who will lose royalties
on whatever part of their work the record companies chose to
give away in violation of what is laughably called a "contract."
Do you benefit? If you want the blockbuster
hits and live near Circuit City or Best Buy. You lose if you
want something other than the big hits and can't find them-which
you won't-at the appliance stores.
Would everybody gain if prices dropped
across the board? Who could know. In the pyramid scheme called
"the free market," it's against the rules to find out.
Addendum:
According to the new issue of Billboard,
the settlement with the states in the price-fixing case now requires
that the record labels pay royalties to the artists. Presumably,
this is the result of Fred Wilhelms phone calls, since there
has been no publicity about the matter.
This places the labels--presuming they
honor an agreement for the first time in history--in the odd
position of paying royalties on records they give away, while
not paying them on records they sell, contract provisions notwithstanding.
I think this is ironic but could not reach Alannis Morrisette.
In case, you think I'm being cynical,
the morning's e-mail brought a flurry of reportage about HR5469,
the House Bill designed to create a royalty system for webcasters
that doesn't put all but the biggeest out of business. Once again,
the RIAA arranged for Capitol Hill underlings to type up the
bill in such a way that two crucial revisions were made against
artists (and in its favor). The first provision eliminated direct
paymetns to artists (meaningthey would flow through standard
label royalty channels, which is the accounting equivalent of
being doused with acid and left to soak) and it also allowed
the labels to recoup their expenses before making payments to
artists (the accounting equivalent not of allowing the fox into
the henhouse but of handing him a napkin and a fork as he enters).
Again, this language sneaked into the bill after the conference
among the parties dependent on the bill ended, in the mddile
of the night, through staffers not legislators and entirely outside
the democratic process.
AFTRA's Greg Hessinger sent out an e-mail
late this morning that "at this point, this information
is outdated and completely contrary to the result ultimately
achieved. The legislation actually REQUIRES direct payment to
artists..." which is true but only becaues REp. Sensenbrenner
intervened (after a threat by Rep. conyers not to vote for the
bill if the language stayed) and revoked the changes; there is
a somewhat amusing colloquy between Sensenbrenner and industry
stooge Howard Berman from the Congressional Record nailing it
down.
Unreported, meaning I don't know the
answers yet and may never:
a) since the "direct payment"
is through Sound Exchange, which is a part of RIAA, how direct
is it and how trustworthy?
b) what is happening to the staffers
who inserted this language? what incentives were they offered
to do this? who at the RIAA--the only party to gain an advantage
from the changes--got them to do it?
c) if the RIAA doesn't intend to steal
(so to speak; I'm sure they've got another language inversion
model) this money from the artists, why did they want these changes?
d) Why aren't the unions and RAC and
other artist advocates demanding a public explanation of this
behavior and the creation of procedures that will ensure it does
not happen again, the next time the RIAA gets a hard on for cash
that belongs to music-makers?
e) If d) isn't achieved, what evidence
is there that "the system works"? Because the RIAA
got caught? Last time they got caught, it took expensive Congressional
hearings and an expensive, full pitch lobbying battle to get
the cheating rectified. What will happen NEXT time? At what point
does somebody slap these bullies and tell them not to try to
it again? Or ban them from legislative conferences altogether?
What protections are we being offered here? ("we" because
even though all of us are not musicians, all of us are gonna
pay part of this money, one way or another and if anything is
clear from the current copyright and other battles, it is that
the American people DO NOT want to further feather the record
company nests)
DeskScan
(what's playing in my office)
1. Nothing to Fear, A Rough Mix by Steinski
(bootleg)
2. The
Rising, Bruce Springsteen (Sony)-The most fun I've had
with this, lately, though is listening to Another Rising, a comp
made by Steve Pond, which finds the titles of every song on Bruce's
album in music by (in order): Woody Guthrie, Sarah McLachlan,
Paul Simon, Pearl Jam, Bruce Cockburn, Elton John, Cock Robin,
Elvis Presley, Eric Clapton, Jackson Browne, Sam Cooke, Ricky
Nelson, Booth and the Bad Angel, Sade, the Pretenders and Cat
Stevens. Not an empty Paradise.
3. Live
At Sugar Hill, Vol. 2 (Fantasy)-Hooker in 1962, at the
peak of his growling form; this might be the best I ever heard
him play guitar. Rummaging through his entire repertoire, which
amounts to blues history up to that moment, from "Bottle
Up and Go" and "Jelly Jelly" to "You Don't
Miss Your Water" and "Five Long Years," ("Volume
I" is part of the collection titled Boogie Children.)
4. Jerusalem,
Steve Earle (E Squared)
5. The
Lost Tapes, Nas (Columbia)-Like Scarface, Nas restores
my faith in hip-hop as urban autobiography. But what's this about
the first thing he got in his blood from his dad was marijuana?
His dad is Olu Dara. Don't tell me there's not some much in the
mix.
6. Revolverution,
Public Enemy (Koch)-Restores my faith in hip-hop as exquisite
urban noise.
7. The
Naked Ride Home, Jackson Browne (Elektra)
8. Pachuco
Boogie featuring Don Tosti (Arhoolie)-For those who doubt
that rock'n'roll was born bilingual.
9. When
Lightnin' Struck the Pine, Cedell Davis (Fast Horse Recordings)
10. Home,
Dixie Chicks (Columbia)
11. Down
in the Alley, Alvin Youngblood Hart (Memphis International)-Miles
from Hart's usual mixture of blues, soul and funk, this Delta
blues set sounds less pure than distilled, by which I mean it
kicks like a mule *outside* its stall.
12. "The Talking Sounds Just Like
Joe McCarthy Blues," Chris Buhalis (demo)-Woody'd be proud.
Best line: Ashcroft's response to "Give me liberty or give
me death"--"Don't tempt me." P.O. Box 2896 Ann
Arbor MI 48106 or chrisbuhalis.com. A patriotic $5
13. Easy,
Kelly Willis (Rykodisc)-If I think this is the weakest batch
of songs she ever had, how come I can't stop listening to it?
That voice. (And the fact that my daughter wouldn't let me, if
I wanted to.)
14. The
Deep End Vol. 2, Gov't Mule (ATO)-The only jam band I
love-because Warren Haynes understands that the music isn't just
rooted in the blues but a species of it. His singing on "Hammer
and Nails" suggests Paul Rodgers in his heyday.
15. Sleepless,
Peter Wolf (Artemis)
16. My Name's Not Rodriguez, Luis Rodriguez
& Seven Rabbit (Dos Manos)
17. Fattening
Frogs for Snakes, John Sinclair & His Blues Scholars
(Okra-Tone/Rooster Blues)
18. Dope & Glory: Reefer Songs der
30er & 40er Jahre (Trikont, Ger; 2 discs)-Liner booklets
s in both German and English but if you can tell them apart,
you're missing the point. Pick hits: "I'm Gonna Get High,"
Tampa Red; "Sweet Marihuana Brown," Barney Bigard;
"Dopey Joe," Slim & Slam; "All Teed Up,"
Sam Price
19. Shootout
at the OK Chinese Restaurant, Ramsay Midwood (Vanguard)
20. Batman and Robin, The Sensational
Guitars of Dick and Dale (Sun Ra & the Blues Project) (Universe)-Yes,
that Blues Project with Danny Kalb and the flute. Not Al Kooper
though; he couldn't make it so producer Tom Wilson invited Ra.
Kooper: "Imagine what the piano player page in Tom Wilson's
phone book looked like."
Dave Marsh coedits
Rock and Rap Confidential.
Marsh is the author of The
Heart of Rock and Soul: the 1001 Greatest Singles.
He can be reached at: marsh6@optonline.net
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