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And starve the industry
that cheats musicians

by Mark Fleischmann

January 1999 -- The music industry has long taken the position that copying recorded music, for any purpose, is illegal and immoral. While not condoning mass-production piracy, the consumer electronics industry has countered that recording for personal use is OK and has lobbied strongly to that effect. The average listener has done whatever he wants. I've always felt a little torn, but rarely copy music today. Instead, I spend a fortune on legit CDs, with the hope that the artists I love -- and have met in many cases -- would get at least a little money.

Well, if the Recording Industry Association of America (read: the record companies) have their way, the artist won't get jack-squat from now on. The RIAA has already persuaded Congress and President Bill Clinton to strip recording artists of their right to receive an ongoing stream of income from their work. The default position of the stealthily amended copyright law is that musical works are "works for hire," owned by the record labels forever. Artists looking for a retirement income won't even be able to regain the right to own and profit from their work after the 35-year copyright period expires.

As far as I'm concerned, in cases where the industry gets away with it, this arrogant and transparent attempt to pick musicians' pockets now makes it ethical, if not legal, for listeners to steal. Go ahead. Download that illegal MP3 file, as long as you don't get caught. Copy that CD onto cassette, or better yet, make a perfect CD-R clone. Form CD-buying clubs with your friends -- each of us buys a disc and distributes copies to the others. Not a penny of the inflated sum you'd pay in a store would get back to the artist anyway. Why lose sleep over stealing from a bully? Your motivation to pay the music industry for music has just disappeared with a stroke of the president's pen.

Good deals and bad

Do I overdramatize? Well, the angry spew above does call for qualifiers.

In some cases, artists will still get their royalties. The new law creates a disadvantageous default position for the musician, but there's still nothing to prevent a smart manager or attorney from negotiating a fairer contract. Existing contracts include both good deals and bad. The Pretentious Dork Formerly Known as Prince made more than $100,000 from his song "1999" as the old millennium exhaled its dying breaths. The Beatles made relatively little from their LPs, but held off on CD releases until they were offered a better percentage.

The old law did nothing to prevent artists from signing bad deals. Early- and mid-century jazz and blues musicians signed work-for-hire agreements, worked for $50 per session, and spent their golden years in grinding poverty. Even when the artist is entitled to royalties, the percentage may be ridiculously low, or his share may be frittered away on crooked accounting that masks a lot of three-martini lunches for marketing executives.

So when you buy a CD, there's little way of knowing whether the artist will get anything or how much he'll get. I know that anything I buy from Robert Fripp's Discipline Global Mobile label will include a healthy royalty for the artist because Fripp is an activist in this area. In other cases I'm not as sure. I wish there were a database I could consult before I put my money on the counter. I buy music for love, not ideology, but knowing whether the artist is getting a fair shake might influence at least some borderline purchases.

Foul play

While artists historically have had few protections from bad business deals (and their own naivete), the way in which the law was amended should be most offensive to anyone with a sense of fair play. After lobbying from the RIAA, a congressional staffer quietly slipped the new provision into the 1976 Copyright Act as part of an omnibus spending bill. Musicians and groups representing them were not consulted. There was virtually no debate.

Even if there is no listener uprising -- I do have an active fantasy life, don't I? -- the industry's move is destined to backfire. A career in music cannot hinge on a few one-shot payments. It needs continuing support, so the artist can buy groceries, housing, medical care -- the same things we all need -- and guitar strings. If the industry's rapacious methods have already driven a lot of talent out of music, this legislation will accelerate the process. The music industry is great at shooting itself in the foot and the ricochets hit every listener who wonders why he hasn't heard anything cool lately.

And then there's the Internet. Artist-activists like Ani DiFranco and Fripp, who have already founded their own cottage-industry CD labels, are being joined by musicians using free MP3 distribution as a means of getting heard. Recent mergers of PolyGram into Universal, EMI into Time Warner, and Time Warner into AOL -- leaving just four major record conglomerates -- will only provide more incentives for musicians to sign with small labels or go independent.

Eventually, the more enterprising artists will figure out how to use copy-protected formats -- the same ones the record companies are feverishly developing and supporting -- to get listeners to pay them directly for their work. If they don't make money on royalties, they might do it via subscriptions or other alternative business models. Giving music away free might provide enough promotional juice to drive sales of concert tickets, T-shirts, whatever it takes to fill a musician's empty pockets.

When that happens, this listener will be ready to support net-savvy artists over the conglomerates whenever I have a choice. I'm already bored by major-label offerings. Maybe the time will come when any new band with half a brain will shun the record companies. Then this listener will forage for new tuneage exclusive on the net, limiting my CD/SACD/DVD-Audio consumption to established artists with good lawyers. This battle isn't over. It's just begun.

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