Wednesday, October 31, 2012

11.1.12 YOU DON'T OWN IT

This article originally appeared in the 11.1.12 issue of Metroland

I was disappointed to learn that the Future of Music Coalition’s annual Policy Summit has been shrunk down to one day.  It’s scheduled for Tuesday, November 13 at Georgetown University.   As I’ve mentioned before, this is the best indy music biz conference on the planet and normally I wouldn’t miss it.  But my November schedule is crushing, and the idea of scooting to DC and back for a one-day conference isn’t hitting me right.  We’ll see.  But if you can go, go!

            Moving on.  Several years ago, when the ebook thing was just starting, there was a bunch of controversy over what you got exactly when you "bought" an ebook.  In one of those turns of events that is so ironic it takes your breath away, Amazon, upon learning that its license to e-publish George Orwell’s 1984 was fraudulent, made all of the ebook copies it had sold magically disappear from its customers’ Kindles.  The outcry was so intense that Amazon’s Jeff Bezos apologized and said it would never happen again.

            Well it happened again.  Last week a Norwegian Kindle user found her Kindle locked, wiping out her entire ebook library.  When she asked Amazon why, she got vague assertions that she’d violated Amazon’s terms of service.

            As things sit today, while you think you are buying an ebook for $10, the seller thinks it's licensing you an ebook for $10.  And if, in the opinion of the seller, you misuse the license, adios biblioteque!   The sellers, like Amazon, are maybe being a little nicer about it after the 1984 debacle, but that’s still how they view things.  

            What the ebook sellers are trying to avoid is something in copyright law called the first sale doctrine, which says once you buy a copy of something, you can do pretty much anything you want with it except make more copies  (that right stays with the copyright owner).   In the physical world, it’s obvious – you buy a book or a CD or a print, and you can keep it, you can eat it, burn it, give it to a friend, sell it on eBay, etc.  In the digital world, the ebook sellers are all kinds of worried that people will go nuts and make copies of their ebooks for all their friends, post the book online, and generally do all of the stuff people do these days with music.  So they’ve created this fiction about licenses, and rigged the ebook files and ebook readers with little “phone home” capabilities that can erase your library should you dare misbehave.

            This issue is getting especially dicey with libraries that want to do what libraries should do with ebooks, lend them out   Publishers, which have always hated libraries, have no idea what to do.  Remember, ebooks are tethered, so a library can’t just go online and buy an ebook, because it can only be read on one device, or one owner’s devices.  So, for ebook lending to work, publishers need to provide libraries ebooks with looser controls, that can be moved across platforms, and shared with the public.   Several publishers have simply refused to allow this, and have kept their ebooks off of libraries' digital shelves.  Several publishers provide ebooks capable of being lent out, but gouge the libraries for as much as 300% of normal retail prices.  One publisher doesn’t allow its ebooks to work on certain devices it doesn’t like, and another electronically limits its library ebooks to 26 loans. 26.  One more than 25.

            What a stupid mess.  So it was shocking last week when a Random House executive announced, in an interview, that when libraries bought a Random House ebook, it owned the book.  It was not a license.  After this stunning comment bounced around the web for a couple of days, a different Random House executive dialed it back, saying that libraries “owned” their ebooks inasmuch as the libraries could move the ebooks across several preapproved platforms.  Meaning that libraries don’t own ebooks, they own licenses for ebooks.  Inasmuch my ass.

            The first sale doctrine came up this week in an argument at the Supreme Court.  It’s always exciting when the high court takes a copyright case, because it rarely does.  It’s also frightening, because it rarely gets it right.  This time, the case is about a kid who bought textbooks overseas and was selling them in the US via eBay. Scholastic publishers apparently assign wildly varying prices to textbooks in different countries.  Why?  Who knows!  But I suspect it has something to do with the fact that scholastic publishers are inherently evil.  In any event, the US publisher of the titles sued the kid.  The case comes down to whether copyrighted material bought in another country is subject to the first sale doctrine here in the US.  The publishers say no, which is of course insane.  You buy something (almost anything) in a foreign country and you can’t sell it here?   Really?

Paul Rapp is an area IP lawyer who is on his third day of back-up power, which was fun the first day, annoying the second day, and a real goddamn drag today.


Friday, October 19, 2012


This article originally appeared in the 10.18.12 issue of Metroland.

            The mantra for musicians is screw the record labels.  Anachronisms, thieves, buffoons.  Who needs them?  Do it all yourself, you can make three times the money with one-tenth the sales.  And it’s sustainable and oh-so satisfying.

            I make this point all the time.  Lots of us do.  But is the mantra always true? 

            Trent Reznor and Radiohead are both pioneers of the DIY anti-label world.  They’ve both self-released monumental works, and have been incredibly successful at it.  Now they’re both on major labels again.  What gives?

            Well, of course, like any mantra, “screw the record labels” isn’t always true.  In Reznor’s and Radiohead’s case, it was a matter of convenience and economics.  The major labels have been around, in one form or another, for about a century, and they’ve got the institutional structure and experience to do some things very well.  Reznor recently explained that he was gigging in some European city, went to a tiny record store, and saw all these posters for a Radiohead show six months in the future.  He realized that, at least for now, all of his web savvy-ness and fan-friendliness was simply incapable of getting him that: posters up prominently in the little record shops of the world.  So it made sense, practically and economically, to team up with a big global record company in order to reach a bigger global audience.  And I’m sure Reznor drove a hard bargain and got a good deal. 

            So, maybe being on a major label is good sometimes.  Particularly if you’ve already got millions of fans, and would like to get millions more.  What about non-major labels?  Screw them, too?

            Well, no.  The best indies are curators for sub-genres.  A major trend in “popular music” over the last twenty years has been splintering and disaggregation of audiences.  In the mid-60’s everyone listened to top-40 radio, where you could hear Herb Alpert, Bubble Puppy, and Otis Redding played one after another.  Nowadays you can have a Norwegian black-metal band touring the world with hundreds of thousands of devoted followers, people who would literally die for the band, and outside of that following?  Totally unknown.   Indy labels tend to focus on one type of music, and put out the best they can find within a given genre.  A label imprimatur can give an artist instant legitimacy; fans know that a new artist on a genre-based label is at least worth checking out, and often worth buying sight-unheard.  And for many artists, this variant on “you can judge a person by the company they keep” can be huge.

            I mean, just look around here.  Phantogram signed to Barsuk, the scrappy Seattle label that specializes in literate outlier artists like Death Cab For Cutey, Ra Ra Riot, and Rilo Kiley.  Sean Rowe is on Anti, wear he rubs elbows with kindred spirits like Tom Waits, Wilco, and Calexico.  The late, great death metal band Skinless was on Relapse Records, alongside such lovely artistes as Dying Fetus, Cephalic Carnage, and Regurgitate.  International Albany label Equal Vision Records is a coveted destination of punk-metal bands and their fans.

            Being on an affinity label has incredible benefits for some artists – in a world where everybody’s recording and sticking everything online, being on the right label serves up the artist on a platter to targeted fans.  The label will also know how to market and position the artist, and (increasingly importantly) how to get an artist’s songs to music supervisors for TV, movie, and advertising placements and the like.  The Skinless guys told me once how Relapse Records was the first stop for WWE wrestlers looking for theme songs.  If a TV show needs rugged Americana, Anti Records will have it (songs from Sean Rowe’s new album are already popping up on some network shows).

            But it’s a matter of bargain, handing the keys over to an indy label.  The artist isn’t driving anymore, but at least the job is entrusted to somebody who presumably knows how to get where the artist wants to go, and maybe even arrive there with some dignity intact. There is also the not-inconsiderable matter of giving away a nice chunk of the money coming in.  If the label is straight (and that’s always a big if) it’ll probably be worth it.

            Ultimately, it’s all a crapshoot, it always has been and always will be.  The critical issue should be what’s best long-term for the artist, what can create a sustainable career, something that can last beyond the first album, and something that will provide another shot if that first album misses.   When you keep it all in-house, you control it.   But it’s a big damn world out there, and sometimes it’s nice to have a little help.

Paul Rapp is an art and entertainment attorney who is about to go to Scott Cole’s Monterey General Store for lunch.




Thursday, October 04, 2012

10.4.12 Grand Theft?

This article originally appeared in the 10.4.12 issue of MetrolandAnd thank you, New Yorker, for embedding some code in your website text that makes formatting quotes from your articles nearly impossible.   Or do you think I'm supposed to pay for the privilege?  Assholes.

Update on my last article (The Money Shot), about the flood of copyright-troll porn-download lawsuits in the federal court system. Just yesterday a federal judge in Boston essentially reversed a decision he made a year ago that it was OK to group dozens, even hundreds, of alleged porn downloaders in one lawsuit. Stating “this Court is concerned that the joinder mechanism is being manipulated to facilitate a low-cost, low- risk revenue model for the adult film companies”, the Court ordered the case severed as
to all but poor John Doe #1. If the porn attorney wants to move forward, he’ll have to
sue each John Doe individually, with a $350 filing fee for each one, and bear all of the attendant administrative and legal costs in bringing a bunch of lawsuits instead of just one. While individual lawsuits in situations like this aren’t unheard of, they’re much less profitable, if they’re profitable at all. We’re hoping that this sad and bizarre episode of legal abuse is nearing its end.
In related news, my blog version of The Money Shot was required reading this week for a Harvard class on internet law. To say I’m honored would be an understatement.
Moving on. It’s time to talk, once again, about musician Amanda Palmer. A couple of weeks ago, she posted a notice that she was looking for a couple of musicians to play a couple of songs with her band at each stop of her upcoming tour, a couple horns and a couple strings. She wasn’t looking for pros, she was looking for fans who could play at a basic level. She’d pay the fan-musicians with “hugs, beer, and merch”, sort of a dream come true for an Amanda Palmer fan. This would be a dream come true for almost any fan of almost any musician. Palmer’s done this on previous tours, and everybody was happy with the arrangement. If you’re not familiar with Amanda Palmer, this is all part of her rather remarkable practice of including her fans in her world, something that’s included extraordinary use of social media and remarkably effective fan-funding of her projects.
But this time she’s getting skewered for it. Her crime? That she raised a staggering $1.2 million dollars on Kickstarter to fund her new album. She was looking to raise $200,000, but her fans wouldn’t be denied the opportunity to support her.
So, musicians, writers, all kinds of people are going bat-shit crazy over the temerity of the “millionaire” Ms. Palmer asking musicians to play for free. I’ve been following this casually, and have only read a couple of the more pointed criticisms. Probably the most ridiculous is one that popped up yesterday on the New Yorker website, an article by someone named Joshua Clover entitled Amanda Palmer’s Accidental Experiment With Real Communism. It’s kind of like Lowery II, except weirder.
Clover starts out on the wrong foot, declaring that Palmer “raised a spectacular sum on Kickstarter to fund her new album and then neglected to pay the musicians who toured with her”, which is just flat wrong. Palmer has a touring band and I would imagine she pays them well. What she was doing was having volunteer fans play on a couple songs with her. I expect better from the New Yorker.
Then he goes on and on, using words like “hypocrisy”, “unjust”, “social justice”,and describing her Kickstarter contributors as “investors” who have taken an “ownership share of her work”, which is utter nonsense. Palmer offered various premiums to contributors, including the recording, merch, and on the upper levels, private concerts. And there are no reports that she hasn’t delivered.
Then Clover gets all labor theory on us, invoking the Occupy movement, even Chuck Berry’s “ill use of local musicians” (Berry famously uses pick-up bands for his gigs, and I know many who’ve played with him and were thrilled to do it and none that weren’t; money wasn’t even a consideration). Huh? Then there’s talk about outsourcing to Bangalore, and the horrors of user-contributors online (which Clover refers to as “unpaid labor”), how things like “Palmer’s hustle” and “cynical scheme” carry a vague promise of future employment, and no employment if you don’t volunteer, the devaluation of music (yawn), “what is the fate of art after private property is done away with?”, “workers sharing in the wealth for practicing their craft”, and “investors and owners deserve[ing] returns on their equity.”
Holy god in a suitcase lighten the hell up! While a lot of the anti-Palmer snark out there reeks of crawfish-in-a-bucket jealousy, this New Yorker piece is redolent of ignorance and perhaps a few too many advanced degrees. Palmer has capitulated and agreed to pay her fan-musicians for the unforgettable couple of hours they’ll spend with her (not that the fan-musicians asked to be paid). I wish she hadn’t.
Paul Rapp is an art & entertainment lawyer who revels in inclement weather. He can be reached through his website