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