The Politics of File Sharing

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.


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)


(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 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:

Dave Marsh edits Rock & Rap Confidential, one of CounterPunch’s favorite newsletters, now available for free by emailing: Dave blogs at