THE INTERNET DEBACLE - AN
ALTERNATIVE VIEW
Originally written for
Performing Songwriter Magazine, May 2002
* Shortly after this
article was turned in, Michael Greene resigned as president of NARAS.
* Please note that this was written well before the advent of
iTunes.
Read Janis' follow up
to this article:
FALLOUT - a follow up to The Internet Debacle
"The
Internet, and downloading, are here to stay... Anyone who thinks
otherwise should prepare themselves to end up on the slagheap of
history." (Janis Ian during a live European radio interview, 9-1-98)
*Please see author's note at end
When I research an article, I
normally send 30 or so emails to friends and acquaintances asking
for opinions and anecdotes. I usually receive 10-20 in reply. But
not so on this subject! I sent 36 emails requesting opinions and
facts on free music downloading from the Net. I stated that I
planned to adopt the viewpoint of devil's advocate: free Internet
downloads are good for the music industry and its artists.
I've received, to date, over 300
replies, every single one from someone legitimately "in the music
business." What's more interesting than the emails are the phone
calls. I don't know anyone at NARAS (home of the Grammy Awards), and
I know
Hilary Rosen
(head of rhe Recording Industry Association of America, or RIAA)
only vaguely. Yet within
24 hours of sending my original email, I'd received two messages
from Rosen and four from NARAS requesting that I call to "discuss
the article."
Huh. Didn't know I was that widely
read.
Ms. Rosen, to be fair, stressed
that
she was only interested in presenting RIAA's side of the issue, and
was kind enough to send me a fair amount of statistics and
documentation, including a number of focus group studies RIAA had
run on the matter.
However, the problem with focus
groups is the same problem anthropologists have when studying
peoples in the field - the moment the anthropologist's presence is
known, everything changes.
Hundreds of
scientific studies have shown that any experimental group wants
to please the examiner. For focus groups, this is particularly
true. Coffee and donuts are the least of the pay-offs.
The NARAS people were a bit more
pushy. They told me downloads were "destroying sales", "ruining the
music industry", and "costing you money". Costing me
money? I don't pretend to be an expert on intellectual property law,
but I do know one thing. If a music industry executive claims I
should agree with their agenda because it will make me more money, I
put my hand on my wallet…and check it after they leave, just to make
sure nothing's missing
.Am I suspicious of all this
hysteria? You bet. Do I think the issue has been badly handled?
Absolutely. Am I concerned about losing friends, opportunities, my
10th Grammy nomination by publishing this article? Yeah. I am. But
sometimes things are just wrong, and when they're that
wrong, they have to be addressed.
The premise of all this ballyhoo is
that the industry (and its artists) are being harmed by free
downloading. Nonsense.
Let's take it from my personal
experience. My site (www.janisian.com ) gets an average of 75,000
hits a year. Not bad for someone whose last hit record was in 1975.
When Napster was running full-tilt, we received about 100 hits a
month from people who'd downloaded Society's Child or At
Seventeen for free, then decided they wanted more information.
Of those 100 people (and these are only the ones who let us know how
they'd found the site), 15 bought CDs. Not huge sales, right? No
record company is interested in 180 extra sales a year. But… that
translates into $2700, which is a lot of money in my book. And that
doesn't include the ones who bought the CDs in stores, or who came
to my shows.
Or take author Mercedes Lackey, who
occupies entire shelves in stores and libraries. As she said
herself: "For the past ten years, my three "Arrows" books, which
were published by DAW about 15 years ago, have been generating a
nice, steady royalty check per pay-period each. A reasonable amount,
for fifteen-year-old books. However... I just got the first half of
my DAW royalties...And suddenly, out of nowhere, each Arrows book
has paid me three times the normal amount!...And because those books
have never been out of print, and have always been promoted along
with the rest of the backlist, the only significant change during
that pay-period was something that happened over at Baen, one of my
other publishers. That was when
I had my
co-author Eric Flint put the first of my Baen books on the Baen Free
Library site.
Because I have significantly more
books with DAW than with Baen, the increases showed up at DAW first.There's
an increase in all of the books on that statement,
actually, and what it looks
like is what I'd expect to happen if a steady line of people who'd
never read my stuff encountered it on the Free Library - a certain
percentage of them liked it, and started to work through my
backlist, beginning with the earliest books published.
"The really interesting thing is,
of course, that these aren't Baen books, they're DAW---another
publisher---so it's 'name loyalty' rather than 'brand loyalty.'
I'll tell you what, I'm sold. Free works."
I've found that to be true myself;
every
time we make a few songs available on my website, sales of all the
CDs go up. A lot.
And I don't know about you, but as an artist with an in-print record
catalogue that dates back to 1965, I'd be thrilled to see
sales on my old catalogue rise.
Now, RIAA and NARAS, as well as
most of the entrenched music industry, are
arguing that
free downloads hurt sales. (More than hurt - they're saying it's
destroying the industry.)
Alas, the music industry
needs no outside help to destroy itself. We're doing a very adequate
job of that on our own, thank you.
Here are a few statements from the
RIAA's website:
- "Analysts
report that just one of the many peer-to-peer systems in operation
is responsible for over 1.8 billion unauthorized downloads per
month".
(Hilary B.
Rosen letter to the Honorable Rick Boucher, Congressman, February
28, 2002) "Sales of blank CD-R discs have…grown nearly 2
˝ times in the last two years…if just half the blank discs sold in
2001 were used to copy music, the number of burned CDs worldwide
is about the same as the number of CDs sold at retail."
(Hilary B. Rosen letter to
the Honorable Rick Boucher, Congressman, February 28, 2002) "Music
sales are already suffering from the impact…in the United States,
sales decreased by more than 10% in 2001." (Hilary B. Rosen letter
to the Honorable Rick Boucher, Congressman, February 28, 2002)
- "In a
recent survey of music consumers, 23%…said they are not buying
more music because they are downloading or copying their music for
free." (Hilary B. Rosen letter to the Honorable Rick Boucher,
Congressman, February 28, 2002)
Let's take these points one by one,
but before that, let me remind you of something:
the music
industry had exactly the same response to the advent of
reel-to-reel home tape recorders, cassettes, DATs, minidiscs, VHS,
BETA, music videos ("Why buy the record when you can tape it?"),
MTV, and a host of other technological advances designed to make the
consumer's life easier and better.
I know, because I was there.The only reason they didn't react that
way publicly to the advent of CDs was because they believed CD's
were uncopyable. I was told this personally by a former head of
Sony marketing, when they asked me to license Between the Lines
in CD format at a reduced royalty rate. ("Because it's a brand new
technology.")
1.
Who's to say that any of those people would have bought the
CD's if the songs weren't available for free? I can't find a single
study on this, one where a reputable surveyor such as Gallup
actually asks people that question. I think no one's run one because
everyone is afraid of the truth
- most of the downloads
are people who want to try an artist out, or who can't find the
music in print.
And if a percentage of that 1.8 billion is because people are
downloading a current hit by Britney or In Sync, who's to say it
really hurt their sales? Soft statistics are easily manipulated. How
many of those people went out and bought an album that had been
over-played at radio for months, just because they downloaded a
portion of it?
Sales of blank
CDs have grown? You bet.
I bought a new Vaio computer in December (ironically enough, made by
Sony), and now
back up all my
files onto CD. I go through 7-15 CD's a week that way, or about 500
a year. Most new PC's come with XP, which makes backing up to CD
painless; how many people are doing what I'm doing?
2.
Additionally,
when I buy a new CD, I make a copy for my car, a copy for upstairs,
and a copy for my partner. That's three blank discs per CD. So I
alone account for around 750 blank CDs yearly.
I'm sure the
sales decrease had nothing to do with the economy's decrease, or a
steady downward spiral in the music industry, or the garbage being
pushed by record companies. Aren't you?
There were 32,000 new
titles released in this country in 2001, and that's not
including re-issues, DIY's , or smaller labels that don't report to
SoundScan. Our "Unreleased" series, which we haven't bothered
SoundScanning, sold 6,000+ copies last year.
A conservative
estimate would place the number of "newly available" CD's per year
at 100,000. That's an awful lot of releases for an industry that's
being destroyed.
-
And to make matters worse, we hear music everywhere, whether we
want to or not; stores, amusement parks, highway rest stops. The
original concept of Muzak (to be played in elevators so quietly
that its soothing effect would be subliminal) has run amok. Why
buy records when you can learn the entire Top 40 just by going
shopping for groceries?
- Which music
consumers? College kids who can't afford to buy 10 new CDs a
month, but want to hear their favorite groups? When I bought my
nephews a new Backstreet Boys CD, I asked why they hadn't
downloaded it instead. They patiently explained to their senile
aunt that the download wouldn't give them the cool artwork, and
more important, the video they could see only on the CD.
-
Realistically,
why do most people download music?
To hear new music, or records that have been deleted and are
no longer available for purchase.
Not to avoid paying $5 at the local used CD store, or taping it off
the radio, but to hear music they can't find anywhere else.
Face it - most people can't afford to spend $15.99 to experiment.
That's why listening
booths (which labels fought against, too) are such a success.
You
can't hear new music on radio these days; I live in Nashville,
"Music City USA", and we have exactly one station willing to play a
non-top-40 format.
On a clear day, I can even tune it in. The situation's not much
better in Los Angeles or New York. College stations are
sometimes bolder, but their wattage is so low that most of us can't
get them.
One
other major point: in the hysteria of the moment, everyone is
forgetting the main way an artist becomes successful - exposure.
Without exposure, no one comes to shows, no one buys CDs, no one
enables you to earn a living doing what you love. Again, from
personal experience: in 37 years as a recording artist, I've created
25+ albums for major labels, and I've never once received a
royalty check that didn't show I owed them money. So I
make the bulk of my living from live touring,
playing for 80-1500 people a night,
doing my own show.
I spend hours
each week doing press, writing articles, making sure my website tour
information is up to date. Why? Because all of that gives me
exposure to an audience that might not come otherwise. So when
someone writes and tells me they came to my show because they'd
downloaded a song and gotten curious, I am thrilled!
Who
gets hurt by free downloads? Save a handful of super-successes like
Celine Dion, none of us. We only get helped.
But not to hear Congress tell it.
Senator Fritz
Hollings, chairman of the Senate Commerce Committee studying this,
said "When Congress sits idly by in the face of these [file-sharing]
activities, we essentially sanction the Internet as a haven for
thievery", then went on to charge "over 10 million people" with
stealing. [Steven Levy, Newsweek 3/11/02]. That's what we think of
consumers - they're thieves, out to get something for nothing.
Baloney.
Most consumers
have no problem paying for entertainment. One has only to look at
the success of Fictionwise.com and the few other websites offering
books and music at reasonable prices to understand that. If the
music industry had a shred of sense, they'd have addressed this
problem seven years ago, when people like Michael Camp were trying
to obtain legitimate licenses for music online. Instead, the
industry-wide attitude was "It'll go away". That's the same
attitude CBS Records had about rock 'n' roll when Mitch Miller was
head of A&R. (And you wondered why they passed on The Beatles and
The Rolling Stones.)
I
don't blame the RIAA for Holling's attitude. They are, after all,
the Recording Industry Association of America, formed so the
labels would have a lobbying group in Washington. (In other words,
they're permitted to make contributions to politicians and their
parties.) But given that
our industry's success is based on communication, the industry
response to the Internet has been abysmal. Statements like the one
above do nothing to help the cause.
Of course, communication has always been the artist's job, not the
executives. That's why it's so scary when people like current NARAS
president Michael Greene begin using shows like the Grammy Awards to
drive their point home.
Grammy
viewership hit a six-year low in 2002.
Personally, I found the program so scintillating that it made me
long for Rob Lowe dancing with Snow White, which at least was so bad
that it was entertaining.
Moves like the
ridiculous Elton John-Eminem duet did little to make people want to
watch again the next year.
And we're not going to go into the Los Angeles Times' Pulitzer
Prize-winning series on Greene and NARAS, where they pointed out
that MusiCares has spent less than 10% of its revenue on disbursing
emergency funds for people in the music industry (its primary
purpose), or that Greene recorded his own album, pitched it to
record executives while discussing Grammy business, then negotiated
a $250,000 contract with Mercury Records for it (later withdrawn
after the public flap). Or that NARAS quietly paid out at least
$650,000 to settle a sexual harassment suit against him, a portion
of which the non-profit Academy paid. Or that he's paid two million
dollars a year, along with "perks" like his million-dollar country
club membership and Mercedes. (Though it does make one wonder when
he last entered a record store and bought something with his own
hard-earned money.)
Let's just note that in his speech he told the viewing audience that
NARAS and RIAA were, in large part, taking their stance to protect
artists. He hired three teenagers to spend a couple of days doing
nothing but downloading, and they managed to download "6,000 songs".
Come on. For free "front-row seats" at the Grammys and an appearance
on national TV, I'd download twice that amount! But…who's got time
to download that many songs? Does Greene really think people out
there are spending twelve hours a day downloading our music? If they
are, they must be starving to death, because they're not making a
living or going to school. How many of us can afford a T-1 line?
This sort of thing is indicative of the way statistics and
information are being tossed around.
It's dreadful to
think that consumers are being asked to take responsibility for the
industry's problems, which have been around far longer than the
Internet. It's even worse to think that the consumer is being told
they are charged with protecting us, the artists, when our own
industry squanders the dollars we earn on waste and personal
vendettas.
Greene went on to say that "Many
of the nominees here tonight, especially the new, less-established
artists, are in immediate danger of being marginalized out of our
business." Right. Any "new" artist who manages to make the Grammys
has millions of dollars in record company money behind them. The
"real" new artists aren't people you're going to see on national TV,
or hear on most radio. They're people you'll hear because someone
gave you a disc, or they opened at a show you attended,
or were lucky enough to be featured on NPR or another program still
open to playing records that aren't already hits.
As to
artists being "marginalized out of our business," the only people
being marginalized out are the employees of our Enron-minded record
companies, who are being fired in droves because the higher-ups are
incompetent.
And it's difficult to convince an educated audience that artists
and record labels are about to go down the drain because they, the
consumer, are downloading music. Particularly when they're paying
$50-$125 apiece for concert tickets, and $15.99 for a new CD they
know costs less than a couple of dollars to manufacture and
distribute.
I suspect Greene thinks of downloaders as the equivalent of an
old-style television drug dealer, lurking next to playgrounds,
wearing big coats and whipping them open for wide-eyed children who
then purchase black market CD's at generous prices.
What's
the new industry byword? Encryption. They're going to make
sure no one can copy CDs, even for themselves, or download them for
free. Brilliant, except that it flouts previous court decisions
about blank cassettes, blank videotapes, etc. And it pisses people
off.
How many of you know that many car makers are now manufacturing
all their CD players to also play DVD's? or that part of the
encryption record companies are using doesn't allow your
store-bought CD to be played on a DVD player, because that's the
same technology as your computer? And if you've had trouble playing
your own self-recorded copy of O Brother Where Art Thou in
the car, it's because of this lunacy.
The industry's answer is to put on the label: "This audio CD is
protected against unauthorized copying. It is designed to play in
standard audio CD players and computers running Windows O/S;
however, playback problems may be experienced. If you experience
such problems, return this disc for a refund."
Now I ask you. After three or four experiences like that,
shlepping to the store to buy it, then shlepping back to
return it (and you still don't have your music), who's going to
bother buying CD's?
The industry has been complaining for years about the stranglehold
the middle-man has on their dollars, yet they wish to do nothing to
offend those middle-men.
(BMG has a
strict policy for artists buying their own CDs to sell at concerts -
$11 per CD. They know very well that most of us lose money if we
have to pay that much;
the point is to keep the big record stores happy by ensuring sales
go to them. What actually happens is no sales to us or the
stores.)
NARAS and RIAA
are moaning about the little mom & pop stores being shoved out of
business; no one worked harder to shove them out than our own
industry, which greeted every new Tower or mega-music store with
glee, and offered steep discounts to Target and WalMart et al for
stocking CDs. The Internet has zero to do with store closings and
lowered sales.
And
for those of us with major label contracts who want some of
our music available for free downloading… well, the record companies
own our masters, our outtakes, even our demos, and they won't allow
it. Furthermore, they own our voices for the duration of the
contract, so we can't even post a live track for downloading!
If you
think about it, the music industry should be rejoicing at this new
technological advance! Here's a fool-proof way to deliver music to
millions who might otherwise never purchase a CD in a store. The
cross-marketing opportunities are unbelievable. It's instantaneous,
costs are minimal, shipping non-existant…a staggering vehicle for
higher earnings and lower costs.
Instead, they're running
around like chickens with their heads cut off, bleeding on everyone
and making no sense.
As an alternative to encrypting
everything, and tying up money for years (potentially decades)
fighting consumer suits demanding their first amendment rights be
protected (which have always gone to the consumer, as witness the
availability of blank and unencrypted VHS tapes and casettes), why
not take a tip from book publishers and writers?
Baen Free Library is one success story.
SFWA is another. The SFWA site is one of the best out there for
hands-on advice to writers, featuring in depth articles about
everything from agent and publisher scams, to a continuously updated
series of reports on various intellectual property issues. More
important, many of the science fiction writers it represents have
been heavily involved in the Internet since its inception. Each
year, when the science fiction community votes for the Hugo and
Nebula Awards (their equivalent of the Grammys), most of the works
nominated are put on the site in their entirety, allowing voters
and non-voters the opportunity to peruse them. Free. If you are
a member or associate (at a nominal fee), you have access to even
more works. The site is also full of links to members' own web pages
and on-line stories, even when they aren't nominated for anything.
Reading this material, again for free, allows browsers to figure out
which writers they want to find more of - and buy their books.
Wouldn't it be nice if all the
records nominated for awards each year were available for free
downloading, even if it were only the winners? People who hadn't
bought the albums might actually listen to the singles, then go out
and purchase the records.
I have no objection to Greene et al
trying to
protect the record labels,
who are the ones fomenting this hysteria. RIAA is funded by them.
NARAS is supported by them.
However, I
object violently to the pretense that they are in any way doing this
for our benefit.
If they really wanted to do something for the great majority of
artists, who eke out a living against all odds, they could tackle
some of the real issues facing us:
-
The normal
industry contract is for seven albums, with no end date, which
would be considered at best indentured servitude (and at worst
slavery) in any other business. In fact, it would be illegal.
-
A label can
shelve your project, then extend your contract by one more album
because what you turned in was "commercially or artistically
unacceptable". They alone determine that criteria.
-
Singer-songwriters have to accept the "Controlled Composition
Clause" (which dictates that they'll be paid only 75% of the rates
set by Congress in publishing royalties) for any major or
subsidiary label recording contract, or lose the contract. Simply
put, the clause demanded by the labels provides that a) if you
write your own songs, you will only be paid 3/4 of what Congress
has told the record companies they must pay you, and b) if you
co-write, you will use your "best efforts" to ensure that other
songwriters accept the 75% rate as well. If they refuse, you must
agree to make up the difference out of your share.
-
Congressionally set writer/publisher royalties have risen from
their 1960's high (2 cents per side) to a munificent 8 cents.Many
of us began in the 50's and 60's; our records are still in
release, and we're still being paid royalty rates of 2% (if
anything) on them.If we're not songwriters, and not hugely
successful commercially (as in platinum-plus), we don't make a
dime off our recordings. Recording industry accounting procedures
are right up there with films.
-
Worse yet,
when records go out-of-print, we don't get them back! We can't
even take them to another company. Careers have been deliberately
killed in this manner, with the record company refusing to release
product or allow the artist to take it somewhere else.
-
And because a
record label "owns" your voice for the duration of the contract,
you can't go somewhere else and re-record those same songs they
turned down.
-
And because of
the re-record provision, even after your contract is over, you
can't record those songs for someone else for years, and sometimes
decades.
-
Last but not
least, America is the only country I am aware of that pays no
live performance royalties to songwriters. In Europe, Japan,
Australia, when you finish a show, you turn your set list in to
the promoter, who files it with the appropriate organization, and
then pays a small royalty per song to the writer. It costs the
singer nothing, the rates are based on venue size, and it ensures
that writers whose songs no longer get airplay, but are still
performed widely, can continue receiving the benefit from those
songs.
Additionally, we
should be speaking up, and Congress should be listening. At this
point they're only hearing from multi-platinum acts.
What about someone like Ani
Difranco, one of the most trusted voices in college entertainment
today?
What about those
of us who live most of our lives outside the big corporate system,
and who might have very different views on the subject?
There is zero evidence that material available for free
online downloading is financially harming anyone. In fact, most of
the hard evidence is to the contrary.
Greene and the RIAA are correct in one thing - these are times of
great change in our industry. But at a time when there are arguably
only four record labels left in America (Sony, AOL/Time/Warner,
Universal, BMG - and where is the RICO act when we need it?) …when
entire genres are glorifying the gangster mentality and
losing their biggest voices to violence …when
executives
change positions as often as Zsa Zsa Gabor changed clothes, and
"A&R" has become a euphemism for "Absent & Redundant" … well, we
have other things to worry about.
It's absurd for us, as artists, to sanction - or countenance - the
shutting down of something like this. It's sheer stupidity to
rejoice at the Napster decision. Short-sighted, and ignorant.
Free exposure is practically a thing of the past for entertainers.
Getting your record played at radio costs more money than most of us
dream of ever earning. Free downloading gives a chance to every
do-it-yourselfer out there. Every act that can't get signed to a
major, for whatever reason, can reach literally millions of new
listeners, enticing them to buy the CD and come to the concerts.
Where else can a new act, or one that doesn't have a label deal, get
that kind of exposure?
Please note that I am not advocating indiscriminate
downloading without the artist's permission. I am not
saying copyrights are meaningless. I am objecting to the RIAA spin
that they are doing this to protect "the artists", and make us more
money. I am annoyed that so many records I once owned are out of
print, and the only place I could find them was Napster. Most of
all, I'd like to see an end to the hysteria that causes a group like
RIAA to spend over 45 million dollars in 2001 lobbying "on our
behalf", when every record company out there is complaining that
they have no money.
We'll turn into Microsoft if we're not careful, folks, insisting
that any household wanting an extra copy for the car, the kids, or
the portable CD player, has to go out and "license" multiple copies.
As
artists, we have the ear of the masses. We have the trust of the
masses. By speaking out in our concerts and in the press, we can do
a great deal to damp this hysteria, and put the blame for the sad
state of our industry right back where it belongs - in the laps of
record companies, radio programmers, and our own apparent inability
to organize ourselves in order to better our own lives - and those
of our fans. If we don't take the reins, no one will.
Sources:
Baenbooks.com, BMG Records, Chicago Tribune, CNN.com, Congressional
Record, Eonline.com, Grammy.com, LATimes.com, Newsweek,
Radiocrow.com, RIAA.org, personal communications
* for more information
on the Free Library, go to
www.baen.com/library .
Read Janis' follow up
to this article:
FALLOUT - a follow up to The Internet Debacle
This article has been revised to
ensure factual accuracy.
Author's note: You are welcome to
post this article on any cooperating website, or in any print
magazine, provided that you include a link directed to
http://www.janisian.com
and writer's credit!
Additionally, we put our money where my mouth is. We offer songs in
mp3 format for free downloading...and if we can ever afford the
server space, we'll try to put a bunch of them up there at once!
These are songs I own and control both the copyright and master to;
you are welcome to share these files with your friends.
Want to know how your politicians
are voting on these issues? Go to
www.vote-smart.org/
Write to your representative and be heard on this subject! |
