7.25.13 DIGITALIS

This article originally appeared in the 7.25.13 issue of Metroland.

             The digital revolution changed everything about the business of music.  Suddenly, anybody with time and a little patience can record something and present it to the world.  Like for free.  That’s pretty staggering.  Why, back when I was your age, we had to pay good money to play instruments and sing into a big tape machine, to get a stinky factory to make records out of oil, and then we had lug the oily records through the dark forest to record shops, hoping that someone, anyone, would notice and buy them.  Then we’d clean the road.  With our tongues.  You tell kids this stuff these days they don’t believe you.

            It’s so much simpler now!  You make music and stick it online. Voila!  And if you’re the listener, damn!  All the music that’s ever been recorded is a keystroke away.  The “celestial jukebox”!  Boom, it’s a new world, and it’s so shiny and as clean, as Miles Davis used to say, as a broke-dick dog.  Whatever that means.

            Not so fast, kemosabe.  Music flies through the air from somewhere and goes into your ears, but copyright law says all that music “belongs” to somebody, and that somebody’s gotta get paid.  But how?  And how much? To who? And for what?

            It’s obscenely complicated because of (1) inertia borne from historical precedents that are no longer relevant (like issues involving player piano rolls, fer chrissakes), (2) insane laws fed to Congress by Big Media companies (served up with monstrous campaign contributions), (3) antiquated court decisions by clueless judges, (4) administrative rulings by stacked tribunals, (5) negotiated settlements by huge companies that don’t care one bit about fairness, only the quarterly earnings call, and (6) the screaming advances in technology that have left the law gasping in the dust.  Copyright law, and particularly how it affects digital music, is a friggin’ mess.  And we’re seeing the detritus of that mess playing out before our eyes.

            Last week Thom Yorke of Radiohead caused a stir by yanking some of his non-Radiohead work off of Spotify.  His main complaint was that plays of indy recordings weren’t getting paid as much as major label recordings.  It’s certainly admirable that someone of Yorke’s stature takes a principled stand for the little guy.  But the Spotify problem, if it is a problem, is buried deep in the deals Spotify had to make to become viable.  In order to get permission to distribute the deep catalogs of the major labels, Spotify apparently had to dole out equity in itself and promise guaranteed levels of revenue to the majors.  And I’m guessing many of these deals are confidential, resulting in the maddening lack of transparency in Spotify’s royalty calculations that many are complaining about.

            But then there’s the basic question that we’ve asked here before:  Is paying major labels higher rates unfair?  Why?  Who said all music has to be priced the same?

            Still awake?  Me neither.  Hold on. It gets worse.

            Earlier this week, chanteuse Aimee Mann sued a company called MediaNet for copyright infringement.  MediaNet is a little-known company that maintains a massive digital music library-for-hire that’s used by any number of other companies.  Like if you wanted to start your own iTunes, you could create your own digital storefront and have MediaNet do all the backend work.

            I get mail from MediaNet and its partner Music Reports from time to time, telling me that they’re requesting a license or asking me to verify some information about my old band.  I get emails from them, too; here’s one about $2.45 in streaming royalties from Amazon Cloud.  They’ve also paid us money through CD Baby, our main digital aggregator.   Once they sent me a check in the mail for $0.01, which was hysterical because the stamp cost forty-two cents.  Know what? I really don’t know what the hell they’re doing with our music.  And I do this shit for a living.

            The thing is, to maintain a catalogue for all these uses, MediaNet needs a pile of licenses and permissions from both the songwriters and the owners of the recordings.  And these licenses and permissions vary depending on whether they’re for permanent downloads, temporary downloads, interactive streams (where you choose specific songs like with Spotify), non-interactive streams (where you don’t, like with internet radio or Pandora), how big your audience is, what country you’re in, etc. and so on.  Keeping it straight has to be a nightmare. 

            In another lawsuit a few years ago, somebody testified that something like 23% of MediaNet’s catalog was unlicensed.  It appears that a lot of the license notices they send out, like the stuff I get in the mail, are legally invalid for a variety of technical reasons.

            Mann’s lawsuit alleges that she revoked a bunch of her licenses to MediaNet years ago and they kept selling her music, illegally.  She’s probably right.  But given the labyrinthine mess the law’s created, this isn’t surprising, it’s inevitable.  Time to change the law.

Paul C Rapp is an attorney and semi-retired recording musician who would like the law to change so he can retire, and sit back and watch the big-ass royalty checks roll in.